An Analysis of Act 283: Alabama’S New Gun Legislation Page 304

September 2013 | Volume 74, Number 5

An Analysis of Act 283: Alabama’s New Gun Legislation Page 304

2013-14 ASB PRESIDENT ANTHONY A. JOSEPH AND FAMILY The best malpractice insurance takes no time to find. AIM makes it easy.

Dedicated to insuring practicing attorneys.

Attorneys Insurance Mutual Telephone 205-980-0009 of the South® Toll Free 800-526-1246 Fax 205-980-9009 200 Inverness Parkway Birmingham, Alabama 35242 www.AttyslnsMut.com

Scan for Application [!] "Insuring and Serving Practicing Attorneys Since 1989" ...... '..;.o,,;t;/.ftl':1'_

September 2013 | Vol. 74, No. 5

304

FEATURES 294 Note from the Editor Lawyers: We Want Your Ideas 326 By Gregory H. Hawley 300 ASB Spring 2013 Admittees 304 An Analysis of Act 283: Alabama’s New Gun Legislation By Aaron L. Dettling 312 Seven Points of Grammar By Allen Mendenhall 312 316 Annual Meeting Highlights 322 Book Review: The Alabama Appellate Practice Guide, 2013 Edition By Ed Haden Reviewed by Judge R. Bernard Harwood, Jr. 323 The Women’s Section of the Alabama State Bar: Honoring the Past, Preparing for the Future, Concerned about the Present By Sherrie L. Phillips and Dean Anita K. Hamlett 326 In Alabama We’ve Done Well, but the Challenge Has Only Begun By J. Flynn Mozingo 329 New Eleventh Circuit Pattern Jury Instructions ON THE COVER By Will Hill Tankersley Pictured on the cover are 2013-14 ASB 330 State Bar Leadership Forum Receives National President Anthony Joseph and wife Cassandra, with two of their sons, Aaron Award from American Bar Association and Kevin. Not pictured is son Justin. 332 Addiction and Mental Illness, and the –Photographed at the Grand Hotel Marriott Benefits of Recovery Resort, Golf Club & Spa by Manual Chavez, By Robert B. Thornhill www.mcphotos.com www.alabar.org | THE ALABAMA LAWYER 285 Gregory H. Hawley, Birmingham...... Chair and Editor ADVERTISERS ALABAMA STATE BAR [email protected] 415 Dexter Avenue Linda G. Flippo, Birmingham .....Vice Chair and Associate Editor Montgomery, AL 36104 [email protected] Alabama Crime Victims (334) 269-1515 • (800) 354-6154 Wilson F. Green, Tuscaloosa...... Vice Chair and Associate Editor Compensation...... 335 FAX (334) 261-6310 [email protected] www.alabar.org Margaret L. Murphy, Montgomery...... Staff Liaison and ALABAMA STATE BAR STAFF Director of Publications [email protected] Attorneys Insurance Mutual Executive Director...... Keith B. Norman Director of Personnel and Operations...... Diane Locke of the South ...... 282 ASB Foundation Assistant/ Robert A. Huffaker, Montgomery...Chair and Editor, 1983-2010 Executive Assistant ...... Ann Rittenour Assistant Executive Director...... Edward M. Patterson Birmingham School of Law...... 306 Director of External Relations BOARD OF EDITORS and Projects...... Christina Butler Melanie M. Atha, Birmingham • Marc J. Ayers, Birmingham • David A. Administrative Assistants for External Relations Bagwell, Fairhope • LaVeeda M. Battle, Hoover • Jennifer M. Bedsole, Birmingham • H. Lanier Brown, II, Birmingham • Henry L. (Max) Cassady, Jr., Cain & Associates Engineers...... 331 and Projects ...... Mary Frances Garner Fairhope • Rhonda P. Chambers, Birmingham • Cason Crosby Cheely, Marcia N. Daniel Daphne • Amy M. Hampton, Alexander City • Walter E. McGowan, Tuskegee • Director of Digital Communications...... J. Eric Anderson Rebecca Keith McKinney, Huntsville • Jeffrey R. McLaughlin, Guntersville • CLE Alabama...... 291 Director of Information Technology ...... Dolan L. Trout James R. Moncus, III, Birmingham • Joi T. Montiel, Montgomery • Anil A. Mujumdar, Birmingham • Sherrie L. Phillips, Montgomery • Allison O. Programmer ...... Larry D. Pratt Skinner, Birmingham • Marc A. Starrett, Montgomery • M. Chad Tindol, Website Administrator ...... Willie Murphy Tuscaloosa • Jason B. Tompkins, Birmingham Cumberland School of Law ...... 284 Information Systems Manager...... O. Hunter Harris Director of Regulatory Programs ...... Angela Parks OFFICERS MCLE Administrative Assistant ...... Carol Thornton Anthony A. Joseph, Birmingham...... President Davis Direct...... 343 Membership Richard J.R. Raleigh, Jr., Huntsville...... President-elect Phillip W. McCallum, Birmingham...... Immediate Past President Administrative Assistant...... Cathy Sue McCurry W. N. (Rocky) Watson, Fort Payne...... Vice President Regulatory Programs Keith B. Norman, Montgomery...... Secretary J. Forrester DeBuys, III...... 331 Administrative Assistant...... Doris McDaniel W. Christopher Waller, Jr., Montgomery...... Young Lawyers’ Section President Director of Publications...... Margaret L. Murphy BOARD OF BAR COMMISSIONERS Director of Admissions ...... Dorothy D. Johnson 1st Circuit, Halron W. Turner, Chatom • 2nd Circuit, Jerry L. Thornton, Hayneville • 3rd Circuit, Christina D. Crow, Union Springs • 4th Circuit, Expedited Process Admissions Administrative Assistants...... Crystal Jones Jana Russell Garner, Selma • 5th Circuit, Charles G. Reynolds, Jr., Lanett • Sonia Douglas 6th Circuit, Place No. 1, Terri O. Tompkins, Tuscaloosa • Place No. 2, R. Serving, LLC ...... 307 & 354 Hays Webb, Tuscaloosa • 7th Circuit, William H. (Bill) Broome, Anniston • Director of Communications ...... Brad Carr 8th Circuit, Phil D. Mitchell, II, Decatur • 9th Circuit, W. N. (Rocky) Financial Administrator ...... Gale Skinner Watson, Fort Payne • 10th Circuit, Place No. 1, Leslie R. Barineau, Financial Assistant/Scanning Operator ...... Kristi Neal Birmingham • Place No. 2, S. Greg Burge, Birmingham • Place No. 3, Barry The Finklea Group...... 347 A. Ragsdale, Birmingham • Place No. 4, Robert G. Methvin, Jr., Graphic Arts Director ...... Roderick Palmer Birmingham • Place No. 5, Augusta S. Dowd, Birmingham • Place No. 6, Receptionist...... Stephanie Oglesby Teresa G. Minor, Birmingham • Place No. 7, Joseph A. Fawal, Birmingham • Director of Service Programs ...... Laura A. Calloway Place No. 8, Brannon J. Buck, Birmingham • Place No. 9, Derrick A. Mills, Freedom Court Reporting...... 355 Birmingham • Bessemer Cutoff, William A. (Pete) Short, Jr., Bessemer • SP Administrative Assistant...... Kristi Skipper 11th Circuit, Albert J. Trousdale, II, Florence • 12th Circuit, Thad Yancey, Lawyer Referral Service Representative...... John Dunn Jr., Troy • 13th Circuit, Place No. 1, Henry A. Callaway, III, Mobile • Place Volunteer Lawyers Program Director ...... Linda Lund No. 2, Walter H. Honeycutt, Mobile • Place No. 3, Clay A. Lanham, Mobile • Gilsbar Management Services, LLC .....356 Place No. 4, Juan Ortega, Mobile • Place No. 5, Harry V. Satterwhite, Mobile VLP Assistant ...... Katherine L. Church • 14th Circuit, James R. Beaird, Jasper • 15th Circuit, Place No. 1, George R. Intake Specialists...... Deborah Harper Parker, Montgomery • Place No. 2, Les Pittman, Montgomery • Place No. 3, Carrie Black-Phillips J. Flynn Mozingo, Montgomery • Place No. 4, J. Cole Portis, Montgomery • LawPay ...... 295 Place No. 5, Jeffery C. Duffey, Montgomery • Place No. 6, Lee H. Copeland, Alabama Lawyer Assistance Program Montgomery • 16th Circuit, Donald R. Rhea, Gadsden • 17th Circuit, K. Director ...... Robert B. Thornhill (334-224-6920) Scott Stapp, Demopolis • 18th Circuit, Place No. 1, W. Randall May, Birmingham • Place No. 2, Julia C. Kimbrough, Birmingham • 19th Circuit, ALAP Case Manager ...... Shannon Knight The Locker Room ...... 293 David A. McDowell, Prattville • 20th Circuit, Hamp Baxley, Dothan • 21st ALAP Administrative Assistant ...... Sandra Dossett Circuit, John L. Jernigan, III, Brewton • 22nd Circuit, John M. Peek, Alabama Law Foundation, Inc. Director ...... Tracy Daniel Andalusia • 23rd Circuit, Place No. 1, H. Harold Stephens, Huntsville • Place No. 2, John A. Brinkley, Jr., Huntsville • Place No. 3, Rebekah Keith National Academy of ALF Administrative Assistants ...... Sharon McGuire McKinney, Huntsville • 24th Circuit, Hon. John Earl Paluzzi, Carrollton • Sue Jones 25th Circuit, J. Daryl Burt, Winfield • 26th Circuit, F. Patrick Loftin, Phenix Distinguished Neutrals ...... 283 Access to Justice Coordinator...... Chandler Barrett City • 27th Circuit, Jerry Wayne Baker, Jr., Albertville • 28th Circuit, Place No. 1, Allan R. Chason, Bay Minette • Place No. 2, Samuel W. Irby, Fairhope Alabama Center for Dispute Resolution • 29th Circuit, Robert L. Rumsey, III, Sylacauga • 30th Circuit, Elizabeth S. Director ...... Judith M. Keegan (269-0409) Parsons, Pell City • 31st Circuit, Braxton W. Ashe, Tuscumbia • 32nd Professional Software Corporation ...... 334 ADR Assistant...... Patsy Shropshire Circuit, Jason P. Knight, Cullman • 33rd Circuit, Robert H. Brogden, Ozark • 34th Circuit, Rebecca Green Thomason, Russellville • 35th Circuit, J. ALABAMA STATE BAR CENTER FOR Milton Coxwell, Jr., Monroeville • 36th Circuit, H. Jerome Thompson, PROFESSIONAL RESPONSIBILITY STAFF Moulton • 37th Circuit, Roger W. Pierce, Auburn • 38th Circuit, Stephen M. Kennamer, Scottsboro • 39th Circuit, John M. Plunk, Athens • 40th Circuit, Thomson Reuters...... insert General Counsel ...... J. Anthony McLain Gregory M. Varner, Ashland • 41st Circuit, Alexander M. Smith, Oneonta Secretary to General Counsel...... Julie Lee AT-LARGE BOARD MEMBERS Assistant General Counsel ...... Jeremy W. McIntire Diandra S. Debrosse, Hoover • R. Cooper Shattuck, Tuscaloosa • Meredith Upchurch Watson White & Max ...... 289 Assistant General Counsel...... Mark B. Moody S. Peters, Andalusia • Rebecca G. DePalma, Birmingham • Alicia F. Bennett, Chelsea • LaBarron N. Boone, Montgomery • Jeanne Dowdle Assistant General Counsel ...... John E. Vickers, III Rasco, Talladega • Monet M. Gaines, Montgomery • Ashley Swink Complaints Intake Coordinator ...... Kim Ellis Fincher, Auburn Vowell & Goldsmith ...... 299 Disciplinary Clerk...... Bonnie Mainor The Alabama Lawyer (USPS 743-090) is published six times a year by the Alabama State Bar, 415 Dexter Avenue, Montgomery, Alabama 36104. Client Security Fund Coordinator ...... Laurie Blazer Periodicals postage paid at Montgomery, Alabama, and additional mailing Client Security Fund Assistant ...... Yvette Williams offices. POSTMASTER: Send address changes to The Alabama Lawyer, P.O. Box 4156, Montgomery, AL 36103-4156. Paralegals/Investigators...... Dianne T. Gray Cheryl L. Rankin The Alabama Lawyer is the official publication of the Alabama State Bar. Views and Carol M. Wright conclusions expressed in articles herein are those of the authors, not necessarily those of the board of editors, officers or board of commissioners of the Alabama State Bar. Receptionist ...... Sherry Langley Subscriptions: Alabama State Bar members receive The Alabama Lawyer as part of their annual dues payment; $15 of this goes toward subscriptions for The Alabama Lawyer. Advertising rates will be furnished upon request. Advertising copy is carefully reviewed and must receive approval from the Office of General Counsel, but publication herein does not necessarily imply endorsement of any product or service offered. The Alabama Lawyer reserves the right to reject any advertisement. Copyright 2013. The Alabama Lawyer The Alabama Lawyer GRAPHIC DESIGN PRINTING The Alabama State Bar. All rights reserved.

286 SEPTEMBER 2013 | www.alabar.org CONTRIBUTORS COLUMNS J. Flynn Mozingo prac- Aaron L. Dettling is a tices with Melton, Espy partner in the & Williams PC in Birmingham office of Montgomery. He is a Balch & Bingham LLP. graduate of the Reared in Atmore, he Cumberland School of studied mechanical engi- Law, a member of the neering at Vanderbilt Board of Bar University before going to Commissioners, a member of the law school at Washington & Lee. After Disciplinary Commission and a graduate law school, Dettling served for two years of the Leadership Forum (Class IV). He is as a law clerk for the Honorable W. B. also a past member of the Alabama Law Hand, senior district judge, in the U.S. Institute and was recently inducted into the 348 District Court for the Southern District of Fellows of the American Bar Foundation. Alabama. His litigation and consulting 288 President’s Page practice centers on labor & employment and civil rights law. Relevancy Is the Cornerstone Sherrie L. Phillips That Binds Us Together serves as of counsel at Sasser, Sefton, Brown, Anita K. Hamlett serves Tipton & Davis PC in 292 Executive Director’s as the associate dean of Montgomery. She is a student services at 1996 graduate from the Report Faulkner University’s University of Alabama More Work Needed to Increase Thomas Goode Jones School of Law and prac- Lawyers in the Legislature School of Law. She is a tices primarily in the areas of creditors’ 1992 graduate from the rights and bankruptcy. University of Alabama 296 Important Notices School of Law. She began her legal prac- Position Available: Alabama tice with Lanier, Ford, Shaver & Payne PC. She worked with the Alabama State State Bar Director of Admissions Bar from 2005 to 2008 and has over 13 Will Hill Tankersley was years of experience in higher education. the first chair of the The United States District Court Alabama State Bar for the Northern District of Intellectual Property Section and is a partner Alabama: Judge R. Bernard at Balch & Bingham LLP. 1. Reappointments of Harwell G. Harwood, Jr. obtained a He served on both the degree in commerce and copyright and trademark Davis, III and John E. Ott as business administration at 11th Circuit pattern jury instruction United States Magistrate Judges the University of Alabama drafting working groups. After college and and his law degree from before law school, he was a soldier. 2. Appointment of New United the university’s school of States Magistrate Judge law in 1963. He practiced in Tuscaloosa until 1991, when he was appointed by the governor to the Circuit 336 Memorials Robert B. Thornhill Court of Tuscaloosa County. He was then holds a bachelor’s degree elected twice to that judgeship. In in psychology and a mas- 338 The App ellate November 2000, he was elected an associ- ter’s degree in counseling ate justice of the Alabama Supreme Court and human develop- Corner and served in that position from January ment. He is a Licensed 2001 to January 2007, when he voluntarily Professional Counselor retired to return to Tuscaloosa. He rejoined 344 Disciplinary Notices (LPC), a Master’s Level his former law firm and the firm resumed Addiction Professional (MLAP), an its original name of Rosen Harwood. Judge Internationally Certified Alcohol and 348 Opinions of the Harwood is a Fellow of the American Bar Drug Counselor (ICADC) and a Foundation, the Alabama Law Foundation Certified Adolescent Alcohol and Drug General Counsel and the American College of Trial Lawyers Counselor (CAADC). He has worked as The Nuts and Bolts of and is a Diplomat of the American Board a primary therapist at the Lighthouse of Trial Advocates. He is chair of the The Disciplinary Process Counseling Center and Bradford Health Advisory Committee on the Alabama Services. Thornhill also served as clinical Rules of Evidence and teaches an advanced director of the Alabama Physician evidence course at the University of 351 Bar Briefs Health Program. He has had the oppor- Alabama School of Law. tunity to work as a clinician for the past 352 Legislative Wrap-Up 17 years. Thornhill currently serves as director of the Alabama Lawyer Allen Mendenhall is a staff attorney to Assistance Program, providing services to 354 About Members, Alabama Supreme Court Chief Justice law students, lawyers and judges who Roy S. Moore and a doctoral candidate may have a problem with substance Among Firms in English at Auburn University. abuse or another mental health issue.

www.alabar.org | THE ALABAMA LAWYER 287 PRESIDENT’S PAGE

Anthony A. Joseph [email protected] Relevancy Is the Cornerstone That Binds Us Together

As lawyers we are trained to focus This Year’s Focus on the most relevant issue. Relevancy Seeking relevance and focus does is the compass that keeps us on track. not mean reinventing the wheel. It As I approached this year, ideas and requires a deliberate focus on those excellent suggestions from others have areas where there is a current need, been plentiful. I quickly realized that no with a vision for the future. With that matter how hard I worked, there was in mind, I settled on: no way I was going to accomplish all • Access to Justice the goals that I was formulating. So I • Adequate Court Funding began to narrow my focus. Reviewing the list, I continued to ask • Digital Communication myself whether those goals were “rele- • Succession Planning for Bar’s vant” to our membership or our mis- Senior Management sion. Do they serve our entire membership or do they serve our role Access to Justice to the greater community? Stated dif- While our current volunteers are ferently, are they relevant to our mem- doing an outstanding job, we still have bers or our role as lawyers? the capacity to do more. Over 17 per- As members of the state bar, we cent of Alabamians (over 720,000) fall understand that this is a bar charged below the federal poverty level, and with licensing, self-regulation, promotion that number continues to rise. of the fair administration of justice and Additionally, many returning veterans improvement of the quality of legal serv- do not have the resources to address ices for all our citizens. It is that moral pressing legal issues. This is especially imperative that drives our purpose and true in rural areas where lawyers are solidifies our bar’s motto: “Lawyers in short supply. Render Service.” That is the core rele- We have over 4,000 active mem- vancy that binds us together. bers of the Alabama State Bar who

288 SEPTEMBER 2013 | www.alabar.org are involved in areas of access to justice We will seek ways to encourage our initiatives such as the Volunteer young lawyers, inactive lawyers and Lawyers Program, pro bono programs corporate lawyers to participate in vol- and reduced-fee arrangements. Lawyers unteer legal clinics and other pro bono with Legal Services Alabama are also efforts. Again this year, we will have a playing a significant role in this regard. major push during the fourth week in Access to justice is relevant to the October during our annual Pro Bono bar because we are built for “service.” Week, where we will gather across There is no better way to serve than to the state to recognize the importance use our special skills to help those in of pro bono service and to thank those need. Toward that end, we must employ thousands of volunteers who work tire- creative strategies to promote, encour- lessly to serve others. It is important age and support our lawyers to volun- to recognize that pro bono service is teer for access to justice initiatives. relevant to our moral obligation and While many Alabama lawyers have been generous in shar- commitment to the fundamental principle of being a lawyer. ing their time, talents and resources, I encourage more of We want to disseminate that message and encourage others us to join the ranks. to participate.

www.alabar.org | THE ALABAMA LAWYER 289 PRESIDENT’S PAGE Continued from page 289

Adequate Court Funding While I continue to believe that personal interactions with fellow lawyers at CLE seminars, annual meetings and participation One of the greatest challenges to our judicial system is sig- in bar sections, committees and task forces remain important, nificant underfunding. As stakeholders in the system, we I also recognize that many of these functions can also be have a fundamental obligation to help ensure adequate fund- accomplished through technology. Communication upgrades will ing that is necessary to maintain the sanctity of the adminis- require a greater investment of resources, time and manpow- tration of justice, and a fair and independent judiciary. er, but will pay huge dividends as we seek ways to become Without adequate funding, access to justice is in peril, and more relevant to all our members. the fair administration of that justice is jeopardized. Over the last few years, our bar has taken an active role in Succession Planning for the Bar’s Senior promoting adequate funding for the courts. As part of the Management greater legal community, we must continue that participation in partnership with the state judiciary, and take steps to Our most valuable assets are the great ensure that the public is also engaged. Our bar must play a folks who work at the bar. I am biased– pivotal role in organizing events, engaging our legislators to but I am fully convinced that “our people” make sure that our courts are adequately funded. are the best! As I look internally at our Last year, our bar commissioned the PARCA group, a senior management, we are blessed to think tank housed on Samford University’s campus, to con- have many valuable treasures of institu- duct a court-cost study. It was the first study of its kind. The tional knowledge, experience and wisdom, goal was to provide an in-depth review of court costs across spanning 25 years or more. However, we the state, a comparative review of how cases are weighted must also be prepared for the transition Johnson in districts around the state and a determination of how fees that will come within the ranks of that and court costs are distributed and used to fund the courts. senior leadership over the next few years. As I have reported As part of our efforts to ensure adequate funding, we will previously, Dorothy Johnson, our director of admissions, who take what we learned from the PARCA study, partner with has done an outstanding job for 22 years, is retiring in August the judiciary and develop a forum through which we can pro- 2014. She will be sorely missed, but we are actively working vide information the public needs to understand that funding on that transition. Recognizing that void and planning for the the courts is essential and fundamental to the Rule of Law. future is important for us to maintain the vibrancy and relevancy of our bar. (See the “Position Available” notice on page 296 Digital Communication of this issue.) Our bar is becoming more diverse by age, geographic loca- Conclusion tions and practice models. That diversity requires that we remain sensitive to the various needs of our membership. I thank you for giving me this tremendous honor and Our ability to remain relevant to our members rests with our opportunity to serve your bar. I approach this year with great ability to provide value. The ability to communicate, and anticipation, not because of the focus just discussed, but receive, information digitally is critical to that effort. because of my knowledge and experience with the servant Last year, President Phillip McCallum appointed a leaders who volunteer their time and talents to ensure the Digital Communication Task Force to review the design, continued success of access to justice initiates, and for serv- content and functionality of the bar’s website. The task force ice on boards, sections, committees and task forces. I can- was also asked to revamp our website and find ways to not tell you the number of lawyers who have approached me improve communication with all our members through a during the course of this year, and given me a pat of encour- more user-friendly base, greater substantive content and agement, and also extended an offer of their services for any better functionality. The task force and the newly-hired direc- project. I am so blessed. I look forward to working with all tor of digital communications, Eric Anderson, continue to the lawyers, volunteers and great folks at the bar to make us make tremendous progress in accomplishing that mission. truly relevant. | AL

290 SEPTEMBER 2013 | www.alabar.org CLE ALABAMA 2013 FALLCALENDAR Advancing your practice I SEPTEMBER 13 PracticalCriminal Defen se Law- Tuscaloosa 20 AutoAccident - Tuscaloosa

OCTOBER MEMBE 11-12 2othAnnual Family Law Retreatto the Beach Membershipperiod : - OrangeBeach Sept. 1, 2013 -Aug. 31, 2014 18 RealEstate Law - Tuscaloosa 25 Fundamentalsof Will Drafting- Tuscaloosa

JOINOUR CLE ALABAMA MEMBERSHIP CLUB NOVEMBER 1 SocialSecurity Disability Law - Tuscaloosa A SAVINGSOF $250 and over! Choosethe option that is mostconvenient tor you! Bothof theseoptions 8 HealthcareLaw - Birmingham ares tructuredto provideyou with the mandatory12 hours of annualCLE 15 BankruptcyLaw Update- Birmingham creditneeded tor A labama.You will alsoreceive o therspecial discounts and servicesthat add to your savings- the moreyou learn, the more you save! DECEMBER Visit www.clealabama.com/membership.phptor moreinformation. 4 AlabamaUpdate Montgomery - Montgomery Individualsmay chooseone o f the following membershipoptions. 6 TortLaw - Birmingham Eitheroption can fulfill your annualMCLE requirement for Alabama. 13 EstatePlanning - Birmingham 18 EmploymentLaw - Birmingham ~ IndividualLi ve Membership: $500(A total savingsof $250or more!) 19 AlabamaUpdate Birmingham - Birmingham ~ Your MembershipIncludes : Registrationfor two live seminars•or two live webcasts*, PLUSyour choice of 3 downloadsfrom our largeselection of CLEsem inar 20 TrialSkills - Birmingham materials online( a $150value !), PLUSa $100discount off the regular registrationfee wheny ou sign upfor additionallive programs . n IndividualOnline M embership:$500 (A total savings of $250or more!) LIVESEMINARS 00 YourMembership Includes: Six hours of on-demand, onlineco ursesAND one Registerat CLEalabama.comor call800.627.65 14 or livewebcast or onel iveseminar* , PLUSyour choice of 3 downloadsfrom our large 205.348.6230for moreinformation . selectionof CLE seminarmaterials on li ne (a $150 value!),PLUS a $100discount off the regularreg istrationfee when you sig n upfor additional liveprograms . CAN'T ATTENDIN PERSON?Check out our other opportunities .

*handoutsprov idedvia downl oad link Webeast s: Manyof ourspring seminars will be webcast. **Multi-daysem inarsexcluded from this offer Watchthe seminar as it happensfrom your own comput er! On-line: VisitCLEalabama.com for 2417 acce ss to over200 onlineseminars and teleconferences. Greater CLEFlexibilitv Savingsot Formore informat ionor to join: $250 Call: 205-348-6230or 800-627-6514 THE UNIVERSITY OF Email:CLE [email protected]

• Individual Memberships arenon-t ransferrable. ALABAMA • All seminar cancellationsmust b e received before noonthe d ay beforethe seminar . No-showsw ill be counted towards your allowance. • Nom embershipwa lk-ins. Registrationmu st be complete by noonthe day beforethe seminar. SCHOOL OF LAW • Seminarsmus t be claimeddurin g membershipyear of September1 , 2013-Au gust31 , 2014.

Members may contactour office a t 800-627-651 4 or 205-348-6230or emailus at [email protected] register for eachseminar . Registernow at CLEalabama.com EXECUTIVE DIRECTOR’S REPORT

Keith B. Norman [email protected] More Work Needed to Increase Lawyers in the Legislature

In my January 2006 “Executive nine lawyers or eight percent of the Director’s Report,” I expressed con- membership. When the final session of cern over the dramatic decline of the 2010–2014 quadrennium begins lawyers serving in the state legislature in February, the senate will count 11 since the mid-1970s. I suggested that lawyers among its ranks: Tammy this steep decline was largely due to Irons, Florence; Arthur Orr, Decatur; two factors: (1) the demise of fee Roger Bedford, Russellville; Jerry schedules prompted by a ruling of the Fielding, Sylacauga; Cam Ward, United States Supreme Court1 and the Alabaster; Rodger Smitherman, subsequent increased significance of Birmingham; Marc Keahey, Grove Hill; the “billable hour” and (2) the Alabama Tom Whatley, Auburn; Hank Legislature replacing biennial sessions Sanders, Selma; Bryan Taylor, with annual sessions, thereby effective- Prattville; and Phil Williams, Rainbow ly doubling the number of legislative City.3 days2 and the amount of time legisla- In the house, there will be 12 lawyer tors must spend in Montgomery. As a members, or 11 percent of the total result of the increased utilization of the number of house members. This is a “billable hour” and the additional time slight increase over the last quadrenni- required to fulfill legislative responsibili- um. The lawyer members are Greg ties, service in the legislature became Burdine, Florence; Marcel Black, less appealing for lawyers. Tuscumbia; Daniel Boman, Sulligent; In 1973, lawyers made up 20 of the Wes Long, Guntersville; Paul 35 members of the senate, or 57 per- DeMarco, Homewood; Demetrius cent. In the 105-member house, 33, Newton, Birmingham; Juandalyn or 31 percent, were lawyers. By Givan, Birmingham; Bill Poole, 2006, the number of lawyers in the Tuscaloosa; Chris England, senate had dropped to 11, or to 31 Tuscaloosa; Mike Jones, Andalusia; percent. In the house, there were just and Paul Beckman, Prattville.

292 SEPTEMBER 2013 | www.alabar.org In a recent conversation with Rep. DeMarco, we discussed attractive by decreasing the amount of time a legislator must the dearth of lawyers in the legislature and the benefit of spend in Montgomery. Moreover, I feel sure that not just increasing those numbers. I told him that as long the legisla- lawyers, but other working citizens who wish to seek legislature continues to meet annually, I did not think more lawyers tive office, would welcome this change. Consequently, I am would be willing to devote such a large block of time to hopeful that legislation will be drafted and introduced to serve. I remarked that returning to biennial sessions might return to biennial sessions. In the meantime, with legislative encourage more lawyers to pursue legislative office. In races looming in 2014, I hope that fellow lawyers who read response, Rep. DeMarco offered a slight variation to return- this and feel called will consider serving their state and pro- ing to biennial sessions as before. He suggested that in the fession by seeking legislative office. | AL off year of a biennial session, the legislature would have a limited number of legislative days to meet and pass the oper- Endnotes ating budgets for the state. This would allow the state to 1. Goldfarb v. Virginia State Bar, 421 U.S. 773 (1975). continue annual budgeting, but non-budget-related legislation 2. Annual sessions run for 30 legislative days within 105 calendar days. Session days do not include travel or committee meeting days. During a typical legislative would be considered every other year. I think his idea makes week, legislators from outside Montgomery typically arrive on Monday afternoon a great deal of sense, especially with our state’s chronic or Tuesday morning to attend sessions generally held on Tuesdays and Thursdays. budget problems. They attend committee hearings on Wednesday and return home Thursday night. 3. The 2010-2014 quadrennium actually began with 12 lawyers in the senate. Ben I firmly believe that returning to biennial sessions, but with Brooks of Mobile was later appointed circuit judge by Governor Bentley to fill a annual budget sessions, would make legislative service more vacancy on the bench for the 13th Judicial Circuit.

www.alabar.org | THE ALABAMA LAWYER 293 NOTE FROM THE EDITOR

Lawyers: We Want Your Ideas

I like the company of lawyers. I like the camaraderie. I like the war stories. I like the culture of sharing different points of view. I like the humor. I like the art of persuasion, the written word, the oral argument. I like our bar and being a part of it. I like our bar organization. I like its staff, mission and culture. When you and I volunteer our time for bar activities, together with the excellent bar staff, we strengthen the bar. Thank you for allowing me to perform the role of editor of The Alabama Lawyer. One of the reasons that I enjoy being editor is the interaction with lawyers and listening to your ideas about issues and trends that we should cover in the Lawyer. I even enjoy constructive criticism of areas that we may overlook from time to time or areas on which we dwell too much. The sharing of ideas strengthens the bar. The Alabama Lawyer serves lawyers, so when you call Margaret Murphy or me, Gregory H. Hawley we enjoy the collaborative work−creating something that serves you. [email protected] With that in mind, let me pose a question: Which of the following scenarios do you think best fits purpose of The Alabama Lawyer and will lead to an article that will be topical, timely and most likely to be widely read and appreciated by our 17,000+ members?

A. Phone call: “Hi Greg, this is Joan Jones. We met at the state bar meeting last year and then saw each other at a motion docket in Baldwin County last fall. Please tell your law partner I said hello. You may not know it but I have done a lot of work in the last year in the area of tort liability in food poisoning. It is a hot topic in the restaurant business, and it touches on the buy local/organic food movement and issues related to farm labor practices. Our mutual friend, David Bagwell−one of your Editorial Board members−thought that you might be interested in discussing the idea of an article in The Alabama Lawyer on the subject. Call me at your convenience if you have time to brainstorm on this subject. Please tell Margaret Murphy I said hello, and keep up the good work!”

B. Unsolicited voicemail: “Mr. Hawley: I am the new marketing director at Dewey, Cheatham & Howe. One of our lawyers in our firm’s health care practice group is trying to develop an expertise in the field of infections arising from the instal- lation of dental braces. I believe that it will help him develop this expertise if he were to publish an article on the subject. Please call me to discuss. Please also tell me the publishing schedule and the publishing requirements of the Alabama Bar Bulletin. Our firm marketing meeting is at 9 a.m. on Friday, so if you could call me tomorrow between 8:30 and 8:45, I would appreciate it.”

If you have anything approaching a soft spot in your heart for the Alabama State Bar or bar activities, generally (and I assume you do if you have read this far), the answer is obvious. Lawyers brainstorming with lawyers edifies our bar and our publication. This is not a slight to marketing directors. I have enjoyed working with them on strategic planning for law firms where I have practiced, but this is your publication for your state bar. Writing an article is your chance to get involved in the bar. We want The Alabama Lawyer to serve the needs of your law practice. We want your ideas. If you have a suggestion for articles, please contact one of your colleagues on the Editorial Board of the Lawyer, the state bar Publications Director, Margaret Murphy, at [email protected] or me, at [email protected]. We look forward to your call. | AL

294 SEPTEMBER 2013 | www.alabar.org /-\ C C lE l· ll~ VISA . 1ilu GREATCLIENT PAID ON TIME, INC.

THE CORRECT WAY TO ACCEPT PAYMENTS!

Trust your credit card transactions to the only r------::r..\Terminals merchant account provider recommended by 32 state and 48 local bar associations! II COOK. 61.00U 10HNSON

.../ Separate earned and unearned fees AMOUN T: .../ 100% protection of your Trust or IOLTAaccount INVOICE , NAME : .../ Complies with ABA & State Bar Guidelines CREDIT CARD: .../ Safe, simple, and secure!

Reduce processing fees and avoid commingling funds through lawPay. Secure Mobile $wiper web payments iPhone, iPad, Android 866.376.0950 Process all major card brands through LawPay LawPay.com/ alabar IMPORTANT NOTICES

Position Available: Alabama State Bar Director of Admissions

The United States District Position Available: Alabama State Court for the Northern District of Alabama: Bar Director of Admissions Reappointments of Harwell G. Description of Position Davis, III and John E. Ott as United States Magistrate The director of admissions is a highly responsible administrative and supervisory Judges position which reports to the executive director of the Alabama State Bar who serves as secretary of the Alabama State Bar Board of Examiners. The admis- Appointment of New United sions department is responsible for reviewing and certifying applications to sit for States Magistrate Judge the Alabama State Bar examination and applications for admission under the reciprocity rule. The department works closely with the Alabama State Bar Board of Examiners as well as the National Conference of Bar Examiners, to prepare, administer and score the February and July bar examinations. The staff likewise will assist the Character and Fitness Committee of the Alabama State Bar. The department receives and processes almost $700,000 a year in bar examination and related fees.

Responsibilities Responsibilities of the director of admissions include: • Reviewing and certifying law student registration applications, bar examination applications and applications for admission on motion (reciprocity); • Determining whether an applicant should be referred to the Character and Fitness Committee; • Serving as the liaison for the Character and Fitness Committee in scheduling hearings and assisting the chair in carrying out its responsibilities; • Reviewing requests for testing accommodations under the Americans With Disabilities Act, preparing and sending a candidate’s documentation to the Alabama State Bar’s medical consultants and evaluating, along with the executive director, the general counsel and the chair of the Board of Bar Examiners, whether an applicant’s request to receive special testing accommodations will be granted;

296 SEPTEMBER 2013 | www.alabar.org • Assisting the Board of Bar Examiners in developing poli- • Demonstrated leadership ability including good decision- cies and procedures related to the format and adminis- making, problem-solving and interpersonal skills; tration of the bar examination; • Ability to lead a team and effectively manage interper- • Administering the bar examination including examination sonal conflict and the admission office’s flow of work; logistics, scheduling proctors and security staffing; • Ability to develop and implement short- and long-term • Organizing the delivery of examination answers to the plans, set priorities and manage multiple activities simul- members of the Board of Bar Examiners for grading, taneously and within specific deadlines; receiving and posting, recording the essay grades pro- • Excellent oral and written communications skills, organi- vided by the examiners, coordinating the calibration of zational ability and attention to detail; the essay and Uniform Bar Examination scores and cer- • Ability to communicate information and explanations as tifying bar examination results to the Alabama Supreme well as interact effectively in a patient and tactful man- Court; ner with department staff, other co-workers, volunteers • Preparing and providing files to the membership depart- and the general public; ment for the newly-admitted applicants; • Ability to perform all essential functions of the position; and • Coordinating the preparation of the admissions program • Any qualified juris doctorate candidate should have the with the Young Lawyers’ Section; demonstrated experience and ability to assume responsi- • Assigning and supervising all admission staff duties and bility as counsel to assist the Office of General Counsel responsibilities; and and the Board of Bar Commissioners in responding to • Managing the receipt of all admission department fees and legal challenges brought by applicants and inquiries from preparation of fee deposits as well as periodic reconcilia- the Alabama Supreme Court, including but not limited to tion of those deposits with the state bar’s finance office. challenges and inquiries regarding character and fitness determinations, waivers of and amendments to bar Qualifications admissions rules and admissions and testing proce- Education–It is preferred but not required that the director dures, deadlines and determinations. of admissions have a juris doctorate from an American Bar Association-accredited law school. If not, the applicant Location should have a post-graduate degree with professional licens- The admissions office and its staff are located in the ing experience or a strong working knowledge of high-stakes Alabama State Bar building in Montgomery, Alabama. The examinations. director must operate the department from this location. Experience–The candidate must have strong supervisory skills and several years of experience of responsibility for Salary and Benefits managing multi-faceted programs. In addition, the candidate The salary will be commensurate with experience. Benefits should have experience working with a board of directors in include participation in the State Employees’ Health Insurance a public, private or non-profit organization as well as coordi- Program and the Retirement Systems of Alabama. nating volunteers. Preferred–Familiarity with issues involving disabilities and Application reasonable accommodations is a plus. Submit a resume with a cover letter of no more than two pages explaining why you would like this position and why you Skill Set believe you are qualified for it to: • Exceptional knowledge of information technology and Keith B. Norman software including social media as well as word process- Executive Director ing, spreadsheet databases, email and management Alabama State Bar software; P.O. Box 671 • Ability to interpret bar examination rules, exercise inde- Montgomery, AL 36101-0671 pendent judgment, identify potential issues and plan a course of action; The deadline for applications is October 11, 2013.

www.alabar.org | THE ALABAMA LAWYER 297 IMPORTANT NOTICES Continued from page 297

THE UNITED STATES DISTRICT (9) Ruling on all non-dispositive motions in felony criminal COURT FOR THE NORTHERN cases or entering findings and recommendations with respect to dispositive criminal motions such as DISTRICT OF ALABAMA: motions to dismiss or to suppress evidence; and (10) Conducting preliminary reviews and making recom- Reappointments of mendations regarding the disposition of prisoner civil Harwell G. Davis, III and rights complaints and habeas corpus petitions and conducting such evidentiary proceedings as may be John E. Ott as United required in prisoner and habeas corpus actions. Comments from members of the bar and the public are States Magistrate Judges invited as to whether the incumbent magistrate judges Notice should be recommended by the panel for reappointment by The current terms of the offices of United States Magistrate the court and should be directed to: Judges Harwell G. Davis, III at Huntsville, Alabama and John E. Sharon N. Harris, Clerk of Court Ott at Birmingham, Alabama are due to expire March 18, United States District Court 2014 and April 5, 2014, respectively. The United States Northern District of Alabama District Court is required by law to establish a panel of citizens 1729 Fifth Ave., N. to consider the reappointments of the magistrate judges to a Birmingham, AL 35203 new eight-year term. Comments must be received by November 1, 2013. The duties of a magistrate judge in the Northern District of Alabama include: (1) The trial and disposition of virtually all categories of civil actions with consent of the parties in accord with 28 U.S.C. § 636(c); Appointment of (2) The trial and disposition of misdemeanor cases; New United States (3) Pursuant to the court’s General Orders of Reference, presiding over all aspects of civil cases, through the Magistrate Judge entry of a recommendation for final disposition under The Judicial Conference of the United States has author- 28 U.S.C. § 636(b); ized the appointment of a full-time United States Magistrate (4) Ruling on various pretrial matters and holding eviden- Judge for the Northern District of Alabama in Birmingham, tiary proceedings on references from the district court Alabama. judges made in addition to the general orders, includ- The duties of the position are demanding and wide-ranging. ing discovery issues and other non-dispositive motions; The basic authority of a United States Magistrate Judge is specified in 28 U.S.C. § 636. The duties of a magistrate (5) Conducting settlement conference or mediation in civil judge in the Northern District of Alabama include: actions by reference; (1) The trial and disposition of virtually all categories of (6) Performing such other duties as set out in LR 72.1 civil actions with consent of the parties in accord with through 73.2, Rules of the Northern District of 28 U.S.C. § 636(c); Alabama and the court’s General Orders of Reference; (2) The trial and disposition of misdemeanor cases; (7) Conducting preliminary proceedings in felony criminal cases, including initial appearances, bond/detention (3) Pursuant to the court’s General Orders of Reference, hearings and arraignments; presiding over all aspects of civil cases, through the entry of a recommendation for final disposition under (8) Issuing warrants of arrest, search warrants and war- 28 U.S.C. § 636(b); rants in administrative actions;

298 SEPTEMBER 2013 | www.alabar.org (4) Ruling on various pretrial matters and holding eviden- (2) Be competent to perform all the duties of the office, tiary proceedings on references from the district court be of good moral character, be committed to equal judges made in addition to the general orders, includ- justice under the law, be patient and courteous, and ing discovery issues and other non-dispositive motions; be capable of deliberation and decisiveness; (5) Conducting settlement conference or mediation in civil (3) Be less than 70 years old; and actions by reference; (4) Not be related to a judge of the district court. (6) Performing such other duties as set out in LR 72.1 A merit selection panel composed of attorneys and other through 73.2, Rules of the Northern District of members of the community will review all applicants and Alabama and the court’s General Orders of Reference; recommend to the district judges in confidence the five per- (7) Conducting preliminary proceedings in felony criminal sons it considers best qualified. The court will make the cases, including initial appearances, bond/detention appointment following an FBI full-field investigation and an IRS hearings and arraignments; tax check of the applicant selected by the court for appoint- (8) Issuing warrants of arrest, search warrants and war- ment. An affirmative effort will be made to give due consider- rants in administrative actions; ation to all qualified applicants without regard to race, color, age (40 and over), gender, religion, national origin, or disabil- (9) Ruling on all non-dispositive motions in felony criminal ity. The current annual salary of the position is $160,080. cases or entering findings and recommendations with The term of office is eight years. respect to dispositive criminal motions such as The application form is available on the court’s website at motions to dismiss or to suppress evidence; and http://www.alnd.uscourts.gov. Applications should be (10) Conducting preliminary reviews and making recom- mailed to: mendations regarding the disposition of prisoner civil Sharon Harris, Clerk of Court rights complaints and habeas corpus petitions. Northern District of Alabama Conducting such evidentiary proceedings as may be 1729 Fifth Ave., N. required in prisoner and habeas corpus actions. Birmingham, AL 35203 To be qualified for appointment an applicant must: Applications must be submitted only by applicants (1) Be, and have been for at least five years, a member in personally and must be received by November 1, 2013. good standing of the bar of the highest court of a All applications will be kept confidential, unless the appli- state, the District of Columbia, the Commonwealth of cant consents to disclosure, and all applications will be Puerto Rico, the Territory of Guam, the Commonwealth examined only by members of the merit selection panel and of the Northern Mariana Islands, or the Virgin Islands the judges of the district court. The panel’s deliberations will of the United States, and have been engaged in the remain confidential. | AL active practice of law for a period of at least five years (with some substitutes authorized);

www.alabar.org | THE ALABAMA LAWYER 299 (Photograph by FOUTS COMMERCIAL PHOTOGRAPHY, Montgomery, [email protected])

Alabama State Bar STATISTICS OF INTEREST Number sitting for exam ...... 207 Number certified to Supreme Court of Alabama ..... 98 SPRING Certification rate* ...... 47.3 percent CERTIFICATION PERCENTAGES University of Alabama School of Law ...... 82.4 percent 2013 Birmingham School of Law ...... 35.7 percent Cumberland School of Law ...... 37.5 percent Admittees Jones School of Law ...... 53.8 percent Miles College of Law ...... 6.7 percent

*Includes only those successfully passing bar exam and MPRE For full exam statistics for the February 2013 exam, go to www.alabar.org/admissions/files/FEB2013-Statistics-Detailed.pdf.

300 SEPTEMBER 2013 | www.alabar.org Alabama State Bar SPRING 2013 Admittees

Akin, Matthew Joseph Griffin, Kaitlyn Lallier Patterson, III, Cleveland Martin Allums, Melanie Welsch Griffin, Kayla Welch Powell, Charles Franklin Alvarez, Charlotte Caroline Hall, Brandon Wayne Price, Meghan Elise Angwin, Oscar Reed Harper, III, Louis Eugene Puccio, Karen Lynette Asthana, Deepti Harrison, Jr., Donald Richard Quijano-Sorrells, Viviana Angelica Austin, Wykeenia Evette Heudebert, Gustavo Antonio Quinlan, Krystal Erin Battles, Gregory Rhys Hickman, Nora Frances Runyan, Christopher Allen Bethea, Barron Augustus Hon, Kevin Duane Sajjadieh, Megan Bishop, Karen Sue Horn, Simone Patricia Schaub, Jessica Weathers Blackburn, Crystal Michelle Jones, Jeannie Clegg Scott, Corlandos Ra-Mon Boswell, Coby McEachern Jones, Leigh Alexandria Selden, John Armistead Bridges, Adrian Revell Kelly, Rachel Elise Sheehan, John Randall Brooks, Cassandra Gross Killcreas, April Hendricks Short, Caren Elaine Brown, Christina Lynn Knight, Hal Michael Simon, Nathan Vincent Brown, Katrina Denise Lang, John Keagan Sims, Laura Tiffany Dean Buchanan, Sonya Maria Lewis, IV, Albert Gamaliel Singh, Satinder Jit Burford, Daniel Preston Lipinsky, Elliott Owen Smith, Daniel Brian Campbell, Raymond Alexander Marshall, Patrick Clayton Smith, Justin Donald Christopher, IV, Ralph Coleman Matthis, II, James Donald Song, Minjae Dalton, John William Maxwell, Jr., Leroy St. John, John Jefferson Davis, Ruby Yvette McDermott, Elizabeth Bradley Stanley, Gregory Scott Dearing, David Patrick McWilliams, Leanne Noel Taft, Kimberly Brooke Dendy, Aaron Phillip Metzger, Rose Impastato Thetford, Jr., Joseph Dimmick DeSilva, Channika Shalini Miller, Kathryn Elizabeth Thomas, Phillips Newbern Dibert, Eric Alan Moore, Dakota Jasper Tingle, Manley Inge Edens, Phillip Joseph Moorer, Suzanah Renee Tucker, Allie Christiansen Emmel, Jennifer Kathryn Moss, Michael Glenn Walker , Jason Darbea Fant, Jr., Michael Allen Nissenbaum, Michael Stuart Whetstone, Christopher Lindsey Ford, Virgil Cornelius Nolin, Nathan Garrett Whittaker, Clay Henderson Freeman, Lauren Ledbetter O’Neill, Mary O’Keefe Willis, Robbie Elizabeth Fuller, Javee Dianne Ortiz, Michelle Noel Young, Bethany Janese Gill, Mary Ellen Osorio, Alberto Jesus Zampierin, Sara Michelle Green, Philip Justin Patel, Rima Prakash

www.alabar.org | THE ALABAMA LAWYER 301 LAWYERS IN THE FAMILY

1 2

3 4

1. John Jefferson St. John (2013), Finis Ewing St. John (1982) and Gaynor Lee St. John (1987) Admittee, father and stepmother

2. Donald R. Harrison, Jr. (2013), Donald R. Harrison (1973) and Jackson Brett Harrison (2006) Admittee, father and brother

3. Brandon Hall (2013) and JoLayne Hall (2004) 5 6 Admittee and wife

4. DeWanna Worshek (2013) and Christopher Worshek (2009) Admittee and husband

5. Elizabeth Nelson (2013) and Pat Nelson (1973) Admittee and father

6. Robbie Willis (2013) and Luann Springer (2004) 7 8 Admittee and mother

7. Leigh A. Jones (2013) and George E. Jones, Sr. (1973) Admittee and father

8. Phillips Newbern Thomas (2013) and Cleophus Thomas, Jr. (1982) Admittee and father

302 SEPTEMBER 2013 | www.alabar.org LAWYERS IN THE FAMILY

9 10

9. Albert Lewis, IV (2013), Albert 11 12 Lewis, III (1979), Mary Lane Falkner (2010), Laura Youngpeter (1987), and Hon. Mike Youngpeter (1987) Admittee, father, sister, aunt, and uncle

10. Coby M. Boswell (2013), Daniel C. Boswell (1977), Alice Ann Byrne (1984), David B. Byrne (1966), and Marc Sandlin (1977) Admittee, father, aunt, uncle, and father-in-law

13 14 11. Manley Inge Tingle (2013) and Charles H. Tingle (1969) Admittee and father

12. Phillip Edens (2013) and John Edens (1978) Admittee and father

13. Javee Dianne Fuller (2013) and L. Dale Fuller (1989) Admittee and father

14. John Lang (2013) and Greg Lang 15 16 (2006) Admittee and father

15. Joseph Thetford, Jr. (2013), Joseph Thetford, Sr. (1981) and Robin Brigham Thetford (1981) Admittee, father and mother

16. Megan Price Fuller (2013) and Everette A. Price, Jr. (1965) Admittee and uncle

www.alabar.org | THE ALABAMA LAWYER 303 304 SEPTEMBER 2013 | www.alabar.org An Analysis of Act 283: Alabama’s New Gun Legislation By Aaron L. Dettling

Americans own no fewer than various state legislatures to propose stricter 1 limits on private firearm ownership. So 200 million small arms. many forces pulling in opposing directions And, by one estimate, over 160,000 made it inevitable that individuals’ rights Alabama citizens−about three percent of under the Second Amendment, traditional the state’s population−have a permit to concepts of private property rights and carry a concealed pistol2 There is no employers’ prerogatives to govern employ- doubt that America’s long tradition of pri- ee conduct would come into contact with vate firearm ownership is unique in the one another. world, and that Alabamians relish it about On May 21, 2013, Governor Bentley as much as anyone else. signed into law Act 2013-283 (“Act 283” After more than two centuries of rela- or “the Act”). Act 283 is a wide-ranging tive silence on the meaning of the Second revision of the law relating to firearms in Amendment, the United States Supreme Alabama. At 38 pages, the Act addresses a Court’s decisions in District of Columbia broad range of firearms-related topics, v. Heller, 554 U.S. 570 (2008), and some of which have received attention in McDonald v. Chicago, 561 U.S. __, 130 S. local news media, and some of which Ct. 3020 (2010), established that the have not been as widely discussed or Second Amendment guaranteed an indi- understood. vidual right to bear arms, and that the Most of the provisions of Act 283 do right was protected from infringement by not directly affect employers’ employment the state and the federal governments policies, but some certainly do. This arti- alike. cle provides an overview of the provisions Meanwhile, crazed individuals have of the Act, with particular emphasis on used firearms in particularly horrific crim- employers’ and businesses’ rights and inal acts, leading some in Congress and in obligations under it.

www.alabar.org | THE ALABAMA LAWYER 305 Background: Enter Act 283 Act 283 covers a lot of ground, and the primary focus in this Alabama Firearms article is on the provisions directly affecting employers and business owners. To provide a broad overview of the scope of Act Laws before Act 283 283, however, the following are a few examples of the range of To understand Act 283, it may help first to clarify a few high other topics covered in the legislation: points about Alabama firearms law as they existed before the Act • It clarifies the legal status of “open carry” in Alabama by became effective. creating a rebuttable presumption that merely carrying “a First, it is important to know what a “pistol permit” is, and what visible pistol, holstered or secured, in a public place” does it is not, under Alabama law. The phrase “pistol permit” is often not, by itself, constitute the offense of disorderly conduct; used in imprecise ways tending to suggest, incorrectly, that one must have a permit or • It provides, as noted above, that sher- license to buy or possess a pistol. No permit iffs “shall issue” a pistol permit unless or license is required to purchase, own or Subject to certain there are specific, documented possess a pistol or any other common grounds for denying issuance of the firearm in Alabama. That said, however, restrictions, starting permit; Alabama law has long prohibited the con- • It creates procedures and standards 3 August 1, Alabama cealed carrying of pistols. Present-day law for judicial review of the denial or prohibits any person from “carry[ing] a pis- employers must revocation of pistol permits; tol in any vehicle or concealed about his or her person,” unless the person has a permit allow their employees • It makes changes to Alabama’s law either issued by the sheriff of the Alabama regarding reciprocity with other county of his or her residence, or issued by to keep firearms in states’ pistol permits; and another state and recognized through reci- • It rewrites Alabama law relating to procity.4 A “pistol permit” allows the holder their vehicles in the the legislature’s preemption of local legally to carry a pistol outside his or her regulation of firearms. own home or business, concealed on or parking lot. about his or her person, or in his or her vehi- The effective date of Act 283 was August cle. That has always been the purpose of a 1, 2013. “pistol permit” under Alabama law.5 That leads to the “may issue” versus “shall issue” distinction. Alabama sheriffs have long enjoyed fairly broad discretion to refuse Workplace to issue a pistol permit to anyone deemed not to be “a proper person” to hold such a permit: the standard in Alabama has long been Implications: The that a sheriff “may issue” a permit if deemed appropriate.6 Under a “shall issue” statute, by contrast, the sheriff is presumptively required Parking Lot Rule to issue a pistol permit upon application, unless cause is affirmatively shown why the permit ought not to be issued. You may be surprised The central feature of Act 283 relating to the employer-employee to learn that Alabama, one of the reddest of the red states, was, until relationship is the “parking lot rule.” Subject to certain restrictions, now, one of the few remaining “may issue” states. In recent years, starting August 1, Alabama employers must allow their employees most other states have either changed their laws to the “shall issue” to keep firearms in their vehicles in the parking lot. standard or altogether abolished their permit requirements.7 Act 283 Act 283 does not allow employees carte blanche to carry and makes Alabama a “shall issue” state. possess firearms during the course of employment. To the contrary, Act 283 expressly reaffirms the employer’s preexisting, common-law authority to regulate the possession of firearms by employees.8 Section 4(a) of Act 283 says: Except as provided in subdivision (b), a public or private employer may restrict or prohibit its employees, including those with a license issued or recognized under Section 13A-11-75, Code of Alabama 1975 [i.e., a “pistol permit”], from carrying firearms while on the employer’s property or while engaged in the duties of the person’s employment. While reaffirming that general common-law authority, Act 283 creates a narrow exception from the employer’s prerogative to prohibit the possession of firearms in the workplace. The exception is limited to the employee’s privately owned car, in the parking lot. The relevant part of the Act, found in Section 4(b), provides:

306 SEPTEMBER 2013 | www.alabar.org (b) A public or private employer may not restrict or prohibit vehicle is otherwise allowed to be; and the firearm must be kept the transportation or storage of a lawfully possessed firearm from public view. While the vehicle is not attended by the or ammunition in an employee’s privately owned motor employee, then the firearm must also be locked either inside the vehicle while parked or operated in a public or private park- passenger compartment or in a “compartment or container ing area if the employee satisfies all of the following: securely affixed to the motor vehicle,” such as a toolbox affixed to the bed of a pickup truck. The parking lot rule does not extend to (1) The employee either: the employer’s buildings, grounds (other than the parking lot) or a. Has a valid concealed weapon permit; or business vehicles; it only applies to “an employee’s privately- owned motor vehicle” while the employee’s vehicle is in the park- b. If the weapon is any firearm legal for use for hunting lot. ing in Alabama other than a pistol: As noted above, if the common requirements of Section 4(b), i. The employee possesses a valid Alabama (b)(2) and (b)(3) are met, there are two separate and independent hunting license; ways of satisfying Section 4(b)(1): one applies if the employee has a pistol permit, and the other applies if the employee does not ii. The weapon is unloaded at all times on the have a pistol permit. property; iii. It is during a season in which hunting is per- Section 4(b)(1) If the Employee Has a Pistol Permit−If the mitted by Alabama law or regulation; employee has a valid pistol permit, then Section 4(b)(1) is auto- matically satisfied through subparagraph (a). Most applications iv. The employee has never been convicted of of the parking lot rule are likely to travel under subparagraph (a). any crime of violence as that term is defined That is because pistols are more frequently carried for personal in Section 13A-11-70, Code of Alabama 1975, defense than rifles or shotguns, a pistol permit is usually required nor of any crime set forth in Article 6 of Title by law in order to carry a pistol in a motor vehicle and Act 283 13A, Code of Alabama 1975, nor is subject to made it more convenient for an individual to obtain and keep a a Domestic Violence Order, as that term is pistol permit by transitioning to the “shall issue” standard and by defined in Section 13A-6-141, Code of providing that a pistol permit can be good for up to five years at a Alabama 1975; time. (Under prior law, a pistol permit could be valid for no more v. The employee does not meet any of the factors than one year.) In instances where the employee has a valid pistol set forth in Section 13A-11-75(a)(1)a.1-8; and permit, application of the parking lot rule should be relatively straightforward.12 vi. The employee has no documented prior workplace incidents involving the threat of physical Section 4(b)(1) If the Employee Does Not Have a Pistol injury or which resulted in physical injury. Permit−A separate and far more detailed set of requirements (2) The motor vehicle is operated or parked in a location applies if the employee does not have a pistol permit. If the where it is otherwise permitted to be. employee does not have a pistol permit, Section 4(b)(1) must be satisfied through subparagraph b, which, in turn, requires that (3) The firearm is either of the following: the employee satisfy of all of the requirements of clauses ( i) a. In a motor vehicle attended by the employee, kept through (vi). If the employee does not have a pistol permit, then from ordinary observation within the person’s the parking lot rule applies only if the firearm is not a pistol and motor vehicle. is legal for hunting in Alabama; the employee has a valid hunting license; the firearm is unloaded; it must be during a hunting sea- b. In a motor vehicle unattended by the employee, son; the employee must not have any disqualifying criminal his- kept from ordinary observation and locked within tory; and the employee must not have any “documented prior a compartment, container or the interior of the workplace incidents involving the threat of physical injury or person’s privately-owned motor vehicle or in a which resulted in physical injury.” In practice, it will be difficult, compartment or container securely affixed to the motor vehicle. To qualify for the parking lot rule, the employee must satisfy the requirements set out in Section 4(b), and all of subparagraphs (1), (2) and (3). There are two separate and independent ways by which the employee may satisfy subparagraph (1), so we’ll take up those last.

The Common Requirements: Section 4(b), 4(b)(2)-(3)−In all cases, in order for the parking lot rule to apply, the firearm or ammunition must be “lawfully possessed” (for example, it must be lawful for the employee to possess a firearm in the first place,9 and, if the firearm is a pistol, the employee must not be a minor,10 and generally must have a valid pistol permit11); the firearm must be kept in the employee’s vehicle in the parking lot where the

www.alabar.org | THE ALABAMA LAWYER 307 if not impossible, for employers to determine whether an suit that may be brought by any person seeking any form of employee meets all of these criteria in advance. If, however, an damages that are alleged to arise, directly or indirectly, as a employer learns that an employee has a firearm in his or her result of any firearm brought onto the property of the vehicle, does not have a pistol permit and does not meet all of employer, owner or lawful possessor by an employee, these conditions, then Act 283 presents no obstacle to the including a firearm that is transported in an employee’s pri- employer disciplining the employee. vately-owned motor vehicle. There are two subtle but important differences between Section 5(c) further provides that employers have no legal duty: Section 4(b)(1)a and Section 4(b)(1)b. First, if the employee satisfies Section 4(b)(1)a by having a pistol permit, that is good for (1) To patrol, inspect, or secure: any lawfully possessed firearm, whereas the Section 4(b)(1)b a. Any parking lot, parking garage or other parking approach is available only for long guns that are legal for hunting. area the employer provides for employees; or Second, there is no requirement that the firearm be unloaded if the employee has a pistol permit. If the employee satisfies Section b. Any privately-owned motor vehicle located in a 4(b)(1) only through subparagraph b, however, then the firearm parking lot, parking garage or other parking area must be unloaded. the employer provides for employees; or (2) To investigate, confirm or determine an employee’s compliance with laws related to the ownership or pos- Employee Suits to session of a firearm or ammunition or the transportation and storage of a firearm or ammunition. Enforce the Parking These provisions may have been conceived as something of a quid pro quo: something to assuage the liability concerns of Lot Rule employers who would have preferred to prohibit altogether the Sections 4(c)(2) and 4(d) of the Act prohibit an employer from possession of firearms by employees, but would now be required taking any adverse action against an employee “solely” because to allow guns in the parking lot. Note well, though: the text does the employee has stored or transported a firearm or ammunition not limit the scope of the immunity to those employers whose in compliance with the parking lot rule. Section 4(g) provides policies restrict the possession of firearms in the workplace. To that, after a demand and 45-day waiting period, an employee the contrary, the immunity principles of sections 5(b) and (c) improperly discharged or disciplined “solely” for possessing a extend to all employers, including employers that have no policies firearm in compliance with the parking lot rule may bring a civil whatsoever toward firearms, and even those that encourage or action to recover any lost wages or remuneration. The Act does require the possession of firearms in the workplace. not provide for any other form of compensatory, punitive or liq- uidated damages. The legislature’s use of the word “solely” in Section 4(c)(2) and Don’t Ask, Don’t Tell? Section 4(d) is noteworthy because it mirrors the language of the retaliatory discharge provision in the Workers’ Compensation In response to Act 283, employers might reasonably wonder Act.13 In light of the legislature’s use of the word “solely,” Alabama whether they should require employees to seek advance permis- courts faced with wrongful discharge suits under Section 4(g) sion or otherwise identify themselves if they intend to possess will likely apply a test similar to that applied in retaliatory dis- firearms under the parking lot rule. That deserves careful consid- charge cases. Under that test, “if there is uncontradicted evidence eration, because there could be some question about the scope of of an independently sufficient basis for the discharge then the permissible inquiries, and the law generally relieves employers of defendant is entitled to a judgment as a matter of law.”14 If an the obligation to ask. employer has any substantiated reason for discharge independent The text and legislative history of Section 4(c) create some of the employee’s possession of a firearm in compliance with the ambiguity as to whether an employer may ask its employees if parking lot rule, then the employer will likely prevail.15 they are transporting or storing firearms in their vehicles under the parking lot rule. The Senate version of SB286, which later became Act 283, clearly prohibited employers from asking employees whether they had a firearm in the car.16 That pro- Employer Immunity hibitory language didn’t make it into the final version of Act 283, but some other slippery language did. Section 4(c) of the Act Provisions does not expressly prohibit inquiries about firearm possession, While Act 283 restricts, to a limited extent, an employer’s lati- but says that “[i]f an employer believes that an employee presents a tude to prohibit the presence of firearms on its premises, it also risk of harm to himself/herself or to others, the employer may provides employers broad protection from legal liability that inquire as to whether the employee possesses a firearm in his or might otherwise arise from the presence or use of any firearms her private motor vehicle.” This language is awkward. From a tex- brought upon the employer’s premises by an employee. Section tual standpoint, there is nothing in Act 283 that prohibits an 5(b) provides in broad terms that: employer from asking its employees any questions about gun ownership or possession, so language expressly authorizing the an employer and the owner and/or lawful possessor of the employer to ask the question if a specific condition is met would property on which the employer is situated shall be appear to be nothing more than sheer dictum. But courts inter- absolutely immune from any claim, cause of action or law- preting statutes sometimes “presum[e] that every word, sentence, 308 SEPTEMBER 2013 | www.alabar.org or provision . . . was intended for some useful purpose, has some force and effect, and that some effect is to be given to each, and Form Policy Language also that no superfluous words or provisions were used.”17 The Some Alabama employers have policies prohibiting their employ- courts may have to sort out whether that maxim applies here.18 ees from possessing firearms and other weapons in the workplace, Section 5(c) explicitly relieves employers of any affirmative and other employers may want to put such duties to search their employees’ vehicles policies in place. Act 283 expressly reaffirms for firearms, or to investigate or determine that they may do so, as long as the parking whether their employees are in compliance lot rule is observed. Other employers have with the firearms laws. In light of this (in Of course, in any not addressed the subject in their employ- addition to the practical difficulties that ment policies and may see no reason to. Act may sometimes attend determining case involving a 283 does not require these employers to whether a particular employee is in compli- promulgate any written policies toward ance with the parking lot rule, particularly credible, imminent firearms in the workplace, pro or con. For when the employee does not have a pistol employers who want to implement specific permit), employers should carefully weigh threat to safety, the written-policy guidance implementing the whether they should seek to know whether parking lot rule, however, the following form employees are possessing, storing or trans- employer should do language may be used as a starting point: porting firearms in their vehicles in accor- everything necessary dance with the parking lot rule. In some cases, “don’t ask, don’t tell” may be sound to protect lives and Parking Lot Rule policy. In accordance with Alabama law (Act On the other hand, in some circum- property. 2013-283), ACME does not prohibit the stances, it would be both reasonable and presence of a firearm or ammunition in entirely consistent with Act 283 to investi- your personal vehicle under the following gate certain facts or take appropriate disci- conditions: plinary actions. Here are some examples: • The firearm or ammunition must be “lawfully possessed” • Employee A is a known felon. Employer learns that (e.g., you must not be prohibited from possessing firearms Employee A regularly keeps a pistol in his vehicle, includ- under 18 U.S.C. § 922(g) or any other applicable law); and ing in the employer parking lot. It would be permissible • The firearm or ammunition must be kept in your person- to investigate and to take appropriate disciplinary action, al vehicle in the parking lot where the vehicle is otherwise because the employee would not have a “lawfully pos- allowed to be; and sessed firearm” as required by Act 283. It would also be appropriate to report to the relevant authorities that • The firearm must be kept from public view, and when Employee A may be in violation of federal and state laws you are not in the vehicle, the firearm must also be kept prohibiting felons from possessing firearms. locked in the trunk, glove box or some other secure container inside the passenger compartment of the vehicle or • Employer’s written policies prohibit the possession of attached to the vehicle; and firearms at work other than in accordance with the parking lot rule. In the employee break room, Employee B •You must either hold a valid Concealed Weapons Permit notices a bulge in Employee C’s pants in the shape of a issued under Ala. Code § 13A-11-75 or recognized under pistol. Because the parking lot rule does not apply to car- Ala. Code § 13A-11-85, or meet all of the alternate rying pistols in the break room, it would be permissible requirements set forth in Section 4(b)(1)b of the Act. for Employer to investigate to determine whether the You are responsible for knowing, understanding and com- bulge is in fact a pistol, and, if so, to take appropriate dis- plying with all requirements of the law. No adverse ciplinary action. (If Employee C does not have a valid pis- employment action will be taken against an employee who tol permit, criminal sanctions may also be possible.) possesses a firearm or ammunition in his or her vehicle in • Employer’s written policies prohibit the possession of full compliance with Act 2013-283 and all other applicable firearms at work other than in accordance with the park- laws. ACME reserves the right to take appropriate discipli- ing lot rule. Employee D drives a pickup truck to work nary action against any employee who possesses, carries or and parks it in the employee parking lot. Visible in the uses a firearm on ACME property in violation of ACME rear window rack is a deer rifle, but it is not deer season. policies other than in full compliance with Act 2013-283 It would be appropriate to investigate and/or take appro- and all other applicable laws. priate disciplinary action against Employee D, because the firearm is not being “kept from ordinary observation” as required by Act 283.19 Section 6 and Of course, in any case involving a credible, imminent threat to safety, the employer should do everything necessary to protect Unresolved Questions lives and property. In other circumstances, it may be prudent to As with virtually any new legislation, Act 283 raises many new seek legal counsel before taking any action. issues and questions for gun owners, employers, property owners

www.alabar.org | THE ALABAMA LAWYER 309 and governmental agencies. Many of these unresolved questions broadly enough to encompass, at least arguably, any hospital that arise out of Section 6 of the Act. I’ve ever been to.) Section 6 of the Act creates new categories of places where it is Section 6 brings its own set of thorny legal issues to the generally unlawful for any person−employee or not−to possess table. Here are a few unresolved questions about the scope any firearm “without the express permission” of a person in and effect of Section 6: charge of the property. Section 6 creates entirely new criminal offenses: It does not merely expound upon traditional trespassing • Section 2 of the Act amends Ala. Code § 13A-11-75 to theories of civil or criminal liability, nor does it directly affect an include a new subsection (f), which reads, “A concealed employer’s or landowner’s right to treat a person carrying a gun pistol permit issued under this section shall be valid for as a trespasser.20,21 Rather, the Section 6 offenses are complemen- the carrying of a pistol in a motor vehicle or concealed on tary to preexisting trespass doctrines. The main effect of Section the permittee’s person throughout the state, unless pro- 6 is to add the prospect of arrest, criminal prosecution and up to hibited by this section.” How does this new subsection three months in jail for possessing a firearm in one of the newly apply in light of Section 6 of the Act (which is not an specified locations.22 amendment to “this section,” i.e., Ala. Code § 13A-11-75)? The new categories of locations are: • In the main, the Section 6 locations do not include the (1) Inside the building of a police, sheriff or highway employer parking lots that would be covered by the park- patrol station; ing lot rule. In the cases of correctional facilities and hospitals, however, an employer parking lot might be “on the (2) Inside or on the premises of a prison, jail, halfway premises of” a location where Section 6 makes it a misde- house, community corrections facility or other deten- meanor to possess any firearm. In these cases, do employ- tion facility for those who have been charged with or ees have no rights under the parking lot rule, or does the convicted of a criminal or juvenile offense; parking lot rule under Section 4 create the legal equiva- (3) Inside or on the premises of a facility which provides lent of, or stand as a substitute for, the property owner’s inpatient or custodial care of those with psychiatric, “express permission” under Section 6(a)? mental or emotional disorders; • Section 6(b) provides that a person “may not, without the (4) Inside a courthouse, a courthouse annex, a building express permission of a person or entity with authority in which a district attorney’s office is located or a over the premises, knowingly possess or carry a firearm building in which a county commission or city coun- inside any building or facility” where guards and security cil is currently having a regularly scheduled or spe- measures are present, but the consequence of a violation cially called meeting; of Section 6(b) is not clear. Section 6(e) designates “a violation of subsections (a) or (d)” as “a Class C misde- (5) Inside any facility hosting an athletic event not related meanor,” but no such designation is included with to or involving firearms which is sponsored by a pri- reference to Section 6(b). What, therefore, is the effect of vate or public elementary or secondary school or any a transgression of Section 6(b)?23 private or public institution of postsecondary education, unless the person has a permit issued under • Section 6(c) provides that persons or entities with author- Section 13A-11-75(a) (1) or recognized under Section ity over Section 6 locations “shall place a notice at the 13A-11-85; public entrances of such premises or buildings alerting those entering that firearms are prohibited.” Just as with (6) Inside any facility hosting a professional athletic event Section 6(b), however, there is no legal consequence not related to or involving firearms, unless the person expressly connected to this mandate. Will courts construe has a permit issued under Section 13A-11-75(a) (1) or the absence of such a sign as tantamount to “express per- recognized under Section 13A-11-85; or mission” to carry a firearm under Section 6(a)? Or, stated (b) . . . inside any building or facility to which access of unau- differently, will courts consider the presence of a sign to thorized persons and prohibited articles is limited during be an element of the Class C misdemeanor offense creat- normal hours of operation by the continuous posting of ed under Section 6(e)? guards and the use of other security features, including, but not limited to, magnetometers, key cards, biometric screening devices or turnstiles or other physical barriers; Conclusion A few details about Section 6 are noteworthy. First, in most cases, Section 6 applies even to a person who has a valid pistol Much of what has been written and said about Act 283 during permit, but the criminal sanctions do not apply to a person who the debates leading up to its passage and afterward can be chalked has a pistol permit carrying inside a facility hosting athletic up to rhetorical license on one side of the debate or another. Some events. Second, pay careful attention to the precise language of of it has been categorically wrong, though. It is easy to get it each subparagraph: Most of the Section 6 locations refer specifi- wrong, too, because the Act is full of twists, turns and detours. All cally to places inside buildings or facilities, but two Section 6 lawyers should read the Act for themselves−all 38 pages of it−and locations (correctional facilities and hospitals) are broader, using test everything they read against the actual language of the Act. the phrase “inside or on the premises of” the building or facility in There is no question that skilled lawyers representing businesses question. (And, it also bears noting that Section 6(a)(3) is drafted and individuals will be studying the language of Act 283 for years

310 SEPTEMBER 2013 | www.alabar.org to come and that, over time, courts will be called upon to inter- officers, pursuant to a valid search warrant or valid warrant- pret its more difficult provisions. | AL less search based upon probable cause, exigent circumstances, or other lawful exception to the search warrant requirement, discover a firearm prohibited by state or federal Endnotes law, stolen property, or a prohibited or illegal item other than 1. Philip J. Cook and Jens Ludwig, Guns in America: National a firearm.” But Section 4(f) obviously does not exhaust the Survey on Private Ownership and Use of Firearms (U.S. possible causes for disciplinary action or the means by which Department of Justice, National Institute of Justice, May 1997), they might be discovered. available at https://www.ncjrs.gov/pdffiles/165476.pdf. 16. See SB286, 2013 Reg. Sess., engrossed version, § 4(b) (“A 2. Lee Roop, “Armed in Alabama: Permits show guns increasingly public or private employer may not inquire or require an employ- prominent,” October 17, 2012, available at http://blog.al.com ee to disclose whether an employee is transporting a firearm or /breaking/2012/10/armed_in_alabama_permits_show.html. has stored a firearm in his or her private motor vehicle.”). 3. See Act 1909-215. 17. Richardson v. Stanford Properties, L.L.C., 897 So. 2d 1052, 1058 (Ala. 2004). 4. Ala. Code §§ 13A-11-73, -74. 18. In similar fashion, Section 4(e) provides that the Act does not 5. It would be an interesting academic exercise to trace the prohibit an employer from making an otherwise proper report development of Ala. Code § 13A-11-52 from 1909 through to law enforcement if it receives credible evidence of illegal the amendments affected by Act 283, and the impact of that activity, including “a firearm prohibited by state or federal law,” section on the proper boundaries of “open carry” in Alabama. “stolen property or a prohibited or illegal item other than a See, e.g., K.J. v. State, 690 So. 2d 541 (Ala. Crim. App. firearm” or “a threat made by an employee to cause bodily 1997); 79 Ala. A.G. 31 (May 26, 1955). That exercise is not harm to themselves or others.” This language merely enumer- undertaken here, however, because it has little to do with ates a non-exhaustive list of possibly permissible grounds for employers’ rights and obligations under Act 283. doing things that the Act does not otherwise prohibit. There is 6. See, e.g., Hess v. Butler, 379 So.2d 1259 (Ala. 1980) (hold- nothing in Act 283 that prohibits an employer from making ing that sheriff did not abuse his discretion in refusing to issue any report of anything to law enforcement authorities. a permit to applicant with various criminal convictions); Ala. 19. It is natural to think of a factual scenario involving a “deer rifle” A.G. Op. 2000-163 (“The word ‘may’ is generally used to as a Section 4(b)(1)b case, but it may or may not be. The sim- imply permissive, optional, or discretional, and not mandatory pler (and correct) approach to this hypothetical is to note that action or conduct. . . . The use of ‘may’ in the statute allows a the parking lot rule always requires that the firearm be hidden sheriff not to issue a pistol permit to a person not qualified to from public view, and in this case, it was not. Even if it were a carry a pistol, or to use his sound judgment to refuse to issue Section 4(b)(1)b case, employers should exercise caution mak- a permit to a person if there are circumstances causing the ing judgments about what sorts of firearms are legal for hunt- sheriff to believe reasonably that the person should not pos- ing during certain seasons. Although I described the visible sess or own a pistol.”); Ala. A.G. Op. 91-227 (“A sheriff has rifle as a “deer rifle” and stipulated that it wasn’t “deer sea- some measure of discretion in determining whether an appli- son,” feral swine may be hunted in Alabama year-round, and cant for or a holder of a license to carry a pistol is a suitable they may be hunted with virtually any common rifle or shotgun person to be so licensed. . . . The question of whether a per- that is not fully automatic and does not have a light source or son is a suitable person to be licensed is a factual determina- silencer attached. See Alabama Administrative Code §§ 220- tion to be made considering the facts in each case.”); Ala. 2-.01, -.02, -.86. A.G. Op. 89-436 (Opining that “a sheriff in his sound discretion may refuse to issue a pistol permit to [a person convicted 20. See, e.g., Ala. Code § 13A-7-1(4) (“A person ‘enters or of incest] if there are circumstances which lead the sheriff to remains unlawfully’ in or upon premises when he is not believe that the person should not possess or own a pistol,” licensed, invited or privileged to do so. A person who, regard- even though such a person would not be legally prohibited less of his intent, enters or remains in or upon premises from owning or possessing a pistol). which are at the time open to the public does so with license and privilege unless he defies a lawful order not to enter or 7. See http://en.wikipedia.org/wiki/Concealed_carry_in_the_ remain, personally communicated to him by the owner of such United_States (visited on May 24, 2013). premises or other authorized person.”); Georgiacarry.org v. 8. Of course, there is nothing in Act 283 that requires an State of Georgia, 687 F.3d 1244, 1264 (11th Cir. 2012) employer to exercise this prerogative. (“Quite simply, there is no constitutional infirmity when a private property owner exercises [its]right to control who may 9. See, e.g., 18 U.S.C. § 922(g); Ala. Code § 13A-11-72. enter, and whether that invited guest can be armed and the 10. See Ala. Code § 13A-11-57. State vindicates that right.”); Satterwhite v. City of Auburn, 11. See Ala. Code §§ 13A-11-52, -73. 945 So. 2d 1076 (Ala. Crim. App. 2006) (Defendant properly convicted of trespassing in the third degree for refusing to 12. Section 4(b)(1)a refers to “a valid concealed weapon permit;” leave bookstore with dog after the shopkeeper requested that it doesn’t explicitly say whether the permit must be an she leave). Alabama resident permit, or whether a permit issued by another state and recognized through reciprocity is sufficient. 21. The Senate Engrossed version of SB286 did, by contrast, Elsewhere, the Act uses the phrase “a permit issued or rec- contain some language that addressed, and in some ways ognized under Section 13A-11-75, Code of Alabama” to make seemed to qualify, a property owner’s right to treat a person it explicit that both categories of permits may be valid in par- possessing a firearm as a trespasser. See SB286, 2013 ticular circumstances. However, I can’t think of any reason Reg. Sess., engrossed version, § 6(a). That language, howev- why a permit issued by another state and valid in Alabama er, was not included in the final Act. through reciprocity should not satisfy Section 4(b)(1). 22. See Ala. Code § 13A-5-7(a)(3). 13. Ala. Code § 25-5-11.1. 23. A transgression of Section 6(b) might be argued to be a “viola- 14. See, e.g., Blue Circle Cement, Inc. v. Phillips, 989 So. 2d tion” under Ala. Code § 13A-5-4. Under that logic, however, a 1025, 1039 (Ala. 2011). business owner’s failure to place signs in accordance with Section 6(c) would probably be a violation, too, and that is 15. The Act itself supplies examples. Section 4(f) expressly allows probably not what the legislature intended. an employer to discipline an employee “[i]f law enforcement

www.alabar.org | THE ALABAMA LAWYER 311 By Allen Mendenhall

312 SEPTEMBER 2013 | www.alabar.org As a staff attorney to Chief Justice Roy S. Moore, I read several briefs and petitions each day. I have noticed that certain grammatical errors are systemic among attorneys. Some errors are excusable; others aren’t. Here are seven errors that are inexcusable.

him/him combination, use whomever. Him/He = whoever “Whoever” and Him/Him = whomever “Whomever” Here are more examples: STEP ONE: You should hire ______Pete recommends. STEP TWO: You should hire him. Pete recommends him. Many attorneys do not know the difference between whoever and whomever. Test your knowledge by answering these questions: STEP THREE: You should hire whomever Pete recommends. Which of the following sentences is correct? STEP ONE: This letter is to ______wrote that brief. A. Give the document to whoever requests it. STEP TWO: This letter is to him. He wrote that brief. B. Give the document to whomever requests it. STEP THREE: This letter is to whoever wrote that brief. Which of the following sentences is correct? STEP ONE: The prize is for _____ wins the contest. A. Whoever arrives first will get a copy. STEP TWO: The prize is for him. He wins the contest. B. Whomever arrives first will get a copy. STEP THREE: The prize is for whoever wins the contest. If you answered A to both questions, you were correct. Here is STEP ONE: The lawyer made a good impression on a trick to help determine whether to use whoever or whomever: ______he met. STEP ONE: Imagine a blank space where you wish to use STEP TWO: The lawyer made a good impression on him. whoever or whomever. He met him. Example: Give the document to ______requests it. STEP THREE: The lawyer made a good impression on whomever he met. STEP TWO: Split the blank space to create two sentences; then fill in the blanks with the pronouns he or him. STEP ONE: The lawyer tried to make a good impression on ______was there. Example: Give the document to him. He requests it. STEP TWO: The lawyer tried to make a good impression STEP THREE: Whenever you fill in the blank space with a on him. He was there. him/he combination, use whoever. As we have already seen, the previous sentence should read, “Give it to whoever STEP THREE: The lawyer tried to make a good impression requests it.” Whenever you fill in the blank space with a on whoever was there.

www.alabar.org | THE ALABAMA LAWYER 313 A. He is the president of the university; as such, he is responsible for allocating funds to each department. B. This is a matter of law; as such, it is subject to de novo “Who” and review. “Whom” C. Theft is a crime; treat it as such. In these examples, “as such” properly refers back to a definite The difference between who and whom has fallen out of antecedent. favor in common speech, but retains its importance in formal “As such” appears regularly in legal writing. Whenever I see writing. Use who if the pronoun is a subject or subject comple- this construction misused, I think about that partner in ment in a clause. Use whom if the pronoun is an object in a Atlanta and become agitated. clause. A trick to help determine whether to employ who or whom is to rephrase the sentence using a personal pronoun “As such” is a simple construction; as such, it entails a simple such as he or him. Consider the following: application. Don’t be shy about calling out your colleagues when you see them misuse this construction, even if you are a “lowly” A. Proper: Whom did you meet? (Rephrase: I met him.) associate. You might just save them−and the partners−from Him is objective, so whom is proper. embarrassment. Improper: Who did you meet? B. Proper: Who do you think murdered the victim? (Rephrase: I think he murdered the victim.) The Colon He is subjective, so who is proper. Improper: Whom do you think murdered the victim? C. Proper: Who was supposed to finish that brief last week? Although many rules govern the use of colons, I want to (Rephrase: He was supposed to finish that brief last week.) focus on this one: Never place a colon between a preposition and its object or between a verb and its complement. Likewise, He is subjective, so who is proper. never place a colon after such words or phrases as especially, Improper: Whom was supposed to finish that brief last including or such as. week? These sentences violate this rule: D. Proper: Justice Brown is the man for whom I voted. A. He was convicted of several crimes, including: first- (Rephrase: I voted for him.) degree robbery, arson, third-degree burglary and second-degree forgery. Him is objective, so whom is proper. B. Some affirmative defenses are: statute of frauds, waiv- Improper: Justice Brown is the man who I voted for. er, statute of limitations, and contributory negligence. C. Most restrictive covenants have provisions about the developer or declarant such as: “Property Subject to the Declaration,” “Easements,” “Assessments” and “As Such” “Membership.” D. She enjoys the sites, especially: the courthouse, the town square and the memorial.

I used to practice at a mid-sized law firm in Atlanta. Tasked No colon is necessary in these sentences. with reviewing the writing of all associate attorneys at the firm, one partner became hardheaded about two words: “as such.” He Subject-Verb always struck through the word “therefore” and replaced it with the words “as such.” He did this so often that I finally decided to Agreement: correct him. I was tired of watching him substitute a grammatical error for a sound construction. “Neither,” When I spoke up, he got defensive. “As such means ‘therefore,’” he said. “Nor,” “Either,” He was wrong. The Random House Dictionary (2013) describes “as such” as “Each,” and an “idiom” that means “as being what is indicated” or “in that capacity.” In other words, after you have described something, “Number” you use the phrase “as such” to refer back to that something “as Attorneys generally understand subject-verb agreement. A described.” Here are examples: verb must agree with its subject in number. That is, a singular

314 SEPTEMBER 2013 | www.alabar.org subject must take a singular verb; a plural subject must take a Plural Noun plural verb. The following words, however, give attorneys trou- The Joneses The Joneses’ ble: neither, nor, either, each, and number. What follows should The Burnses The Burnses’ clarify how to make these nouns agree with a verb. The bosses The bosses’ Neither Mel’s clients nor his associate ___ going to the meeting tomorrow. When you pair neither and nor as conjunctions linking two nouns, choose the noun closest to the verb and let that noun determine whether you use is or are. In the example above, associate is closest to the verb. Associate is “Only” singular, so the proper verb is is. Neither of the partners ___ attending the meeting. Only is one of the most regularly used words in the English Neither is singular and the subject of the sentence. It language. It is also one of the most regularly misused modi- requires a singular verb: is. The verb is not are if the plu- fiers. Below are examples of how attorneys misuse only in peti- ral noun (partners) is not the subject. Partners is not the tions and briefs. I have altered the language in these examples subject; it is part of a prepositional phrase. to conceal the identity of the authors. ___ either of you available to take his deposition tomorrow? A. “The appellant only references the reason why the appellee did not seek counseling.” Either is singular and the subject of the sentence. It requires a singular verb: is. The verb is not are if the plu- This sentence implies that the appellant does nothing− ral noun (you) is not the subject. You is not the subject; it nothing at all−but reference the reason why the is part of a prepositional phrase. appellee did not seek counseling. The appellant does not eat, sleep, think, talk, love, feel, or breathe. The only Each of you ___ contributed valuable insights to the case. thing he does is reference the reasons why the appellant The pronoun each is the subject of the sentence. Each is did not seek counseling. He must be a robot. The singular and requires a singular verb: has. Many attorneys author of this sentence intended to say the following: will write have because they think that each is plural or “The appellant references only the reason why the that the verb must modify the plural noun you. You is appellee did not seek counseling.” This revised sentence part of a prepositional phrase and cannot serve as the means that, of all the reasons from which he could have subject of the sentence. chosen, the appellant referenced only one. The appellant could have referenced other reasons, but did not. The number of thefts ___ increasing. B. “He only robbed two people.” Number can be singular or plural depending on the con- text. Here, number is used with the definite article the. This example suggests that “he” has never done any- Therefore, the singular verb (is) applies. In most cases, if thing− anything at all−but rob two people. If all you number is used with the indefinite article a, then the plural have ever done is rob two people, your entire exis- verb (are ) applies. tence has been a crime. The author of this sentence intended to say the following: “He robbed only two people.” This revised statement should cause one to The Possessive ask, “That’s it? Just two people?” C. “The agency granted the application on the condition that Form of Nouns the hospital only will move 300 beds.” A hospital that does nothing but move 300 beds will Ending in “S” not help sick patients. The author of this sentence should have written, “The agency granted the applica- My sixth-grade teacher instructed me never to add’s after a tion on the condition that the hospital will move only singular noun ending with an s or s sound. She was wrong. The 300 beds.” In this revised sentence, “only” modifies trick to nouns ending with an s or an s sound is that no trick “300 beds” rather than the verb “will move.” exists: the rule is the same for these nouns as for all other nouns (with a few notable exceptions, such as the words “its” Attorneys are educated; we tend to avoid using language if and “yours”). To form a singular possessive, add ’s to the singu- we aren’t certain about its grammatical soundness. Something lar noun. To form a plural possessive, add an apostrophe to the about the foregoing rules baffles us, though. plural noun. Here are some examples: The rules, though, are easy. What’s difficult is overcoming habits and industry-wide error. If you aren’t certain about a rule, Singular Noun don’t just ask your colleagues for the solution. And don’t take Mr. Jones Mr. Jones’s your colleagues’ suggestions at face value. Consult a good, reliable Mrs. Burnes Mrs. Burnes’s grammar book. Doing so will improve your writing and possibly The boss The boss’s raise the quality of writing within the entire profession. | AL

www.alabar.org | THE ALABAMA LAWYER 315 Awards and Highlights Photos by Laura Calloway, Angela Parks and Alabama Lawyer staff 2013 Award Recipients

William D. “Bill” Scruggs, Jr. President’s Award Presented in Recognition Service to the Bar of Exemplary Service to the Profession

President McCallum chose as the 2013 recipients those who best exemplified the state bar motto, “Lawyers Render Service.” Recipient David M. Wooldridge of Birmingham (center), with Accepting a President’s Award on behalf of her late husband, W. Alabama Lawyer Assistance Program Director Robert Thornhill and Eason Mitchell, is Nancy Mitchell, with David Wooldridge and ASB President Phillip W. McCallum President McCallum (see other recipients below). This award honors the memory and the accomplishments of Bill Scruggs and encourages the emulation of his deep devotion and service to the Alabama State Bar by recognizing outstanding, long-term service by living members of the bar to the ASB. Wooldridge’s service to the bar has been marked by compassion and support to the recovering community. He has served as a board member of the Alabama Lawyer Assistance Foundation since its inception in 2000 and also was chair and board member of the Lawyer Assistance Program and its predecessor, the Lawyers Helping Lawyers Committee. He has written and lec- tured extensively about dependency problems affecting lawyers and law students. In 2009, he and Squire Gwin were recognized with the Award of Merit for their outstanding constructive service to the legal profession through their tireless work with the ALAP.

President McCallum with additional President’s Award recipients, including, left to right, Jana Russell Garner, Suzanne D. Edwards, Award of Merit Ashley Swink Fincher, Charles A. McCallum, III, Rebecca G. DePalma, David E. Rains, and Othni J. Lathram. Not pictured are recipients Tracy T. Leonard, Angela Slate Rawls and Edward S. Sledge, IV.

Recipient James R. Pratt, III (center), with Executive Council member Christina Crow and President McCallum The Award of Merit recognizes outstanding constructive service to the legal profession in Alabama. Pratt is a past president of the state bar and is most notably identified with strengthen- ing the bar’s legislative advocacy program to monitor all legislative, judicial and administrative developments that affect the legal profession and the justice system. He created a novel, bi-parti- san plan for the state bar called the “Panel of Neutrals” which assists the legislature in seeking consensus, working through discord and resolving barriers to progress. He served two terms as a member of the Board of Bar Commissioners and as a member of a disciplinary panel.

316 SEPTEMBER 2013 | www.alabar.org 2013 ASB ANNUAL MEETING Awards and Highlights

Judicial Award of Merit Volunteer Lawyers Program Pro Bono Awards

Linda Lund, VLP director; James Terrell, chair, Pro Bono & Public Service Committee; Recipient Judge Eugene R. Verin (center), with President- recipients Royal C. Dumas; Derek W. Simpson (also accepting for J. Barton Warren); Anita elect Anthony A. Joseph and President Phillip McCallum K. Hamlett (accepting for Virginia Lemon); and J. Payne Baker, Jr.; and President McCallum The Judicial Award of Merit is presented to a judge who is not Royal Dumas, recipient of the Al Vreeland Award, recruited 20 new volunteers to provide retired, whether state or federal court, trial or appellate, and is counsel to the poor and disadvantaged who seek assistance through the Montgomery County determined to have contributed significantly to the administra- Bar Association Legal Clinic. He also is willing to provide representation in complicated pro tion of justice in Alabama. Judge Verin is the senior circuit judge bono cases that require litigation to resolve the matter and, in 2012, accepted 13 cases. for the 10th Judicial Circuit (Bessemer Division), a position he Derek Simpson, accepting for Warren & Simpson PC, recipient of the Firm/Group Award, has held since 1998. He is a 1978 honors graduate of Rutgers approached the Madison County VLP several years ago, asking about the possibility of holding a University and earned his law degree from Howard University. large fundraiser. He and his law partner, Barton Warren, offered to underwrite the entire event. Judge Verin serves as executive director of the Birmingham Bar The first event focused on the legal community and more than $9,000 was raised. Last year, the Association New Lawyer Mentoring Program and as chair of event took on an Oktoberfest theme and raised $13,000 for the MCVLP. These events also create the Magic City Bar Association’s Judicial Council. Judge Verin is invaluable community awareness of the need for increased access to justice and the good work married to Circuit Judge Annetta H. Verin. volunteer lawyers are doing. Virginia Lemon, recipient of the Law Student Award, led the Jones Public Interest Law Foundation (JPILF) as its student-president. The JPILF raises money for stipends to support Chief Justice’s students with unpaid summer jobs in public interest/service law offices in preparation for Professionalism Award careers of service. Lemon logged nearly 400 hours in the program and was the recipient of the law school’s 2012-13 Distinguished Public Interest Award. Payne Baker, recipient of the Mediation Award, is the coordinator of the Jefferson County District Court Mediation Program. Begun in 2000, it is one of the longest-running volunteer programs in the state, providing conflict resolution by qualified, dedicated volunteers. Pro bono mediation/services are provided to pro se parties on the small claims docket. Volunteer media- tors donated approximately 450 pro bono hours in 2012.

Local Bar Awards of Achievement

Recipient Alabama Supreme Court Justice (ret.) A. Hugh Maddox with his son, Robert H. Maddox This award was created jointly by the Chief Justice’s Commission on Professionalism and the Alabama State Bar, recognizing a judge or lawyer for his or her outstanding contribution in advancing the professionalism of the legal profession in Alabama. Maddox is known as a tireless advocate for improving professionalism throughout the American and Alabama legal communities. Justice Maddox retired in January 2001 as the senior associate justice on the Alabama Supreme Court, where he was considered by many to be its intellectual cornerstone. President-elect Joseph with recipients C. Daniel White (Escambia County Bar Association), After being appointed to thesupreme court by then-Governor Tazewell T. Shepard, III (Huntsville-Madison County Bar Association), Robin L. Burrell Brewer in 1969, he was elected on five different occasions. (Birmingham Bar Association) and Gabriela Watson (Marshall County Bar Association) During his 31 years on the court, he established a work product The awards recognize local bar associations for their outstanding contributions to their com- that no other Alabama jurist is likely to equal, including 1,650 munities. Associations compete for these awards based on their size – large, medium or small. majority opinions. With a journalistic background, he is a Criteria used to judge the contestants includes the degree of participation by the bar in advancing prodigious writer of books, articles and stories, including a chil- programs to benefit the community, the quality and extent of the impact of the bar’s participation dren’s book he not only authored but illustrated. on the community and the degree of enhancements to the bar’s image in the community.

2013 ASB ANNUAL MEETING www.alabar.org | THE ALABAMA LAWYER 317 Wednesday Highlights/Exhibitors

The cast and crew of “Things I Find Interesting” include Judge Eugene Verin, Justice Thomas Woodall, President-elect Anthony Joseph, Chief Justice (ret.) Sue Bell Cobb, Barry Ragsdale, Judge Michael Graffeo, and Judge Jimmy Pool.

Cleve Poole with his captive audience (Bob McCurley and Steve Enjoying the slower pace of the Grand Hotel are Everette Price, Terrie Biggs Shaw), explaining the goals and accomplishments of the Digital and Donna Price. Communications Task Force 2013 ASB Annual Meeting Exhibitors AAL … The Association for Legal Cain & Associates Engineers & Jackson Thornton & Co. Professionals Constructors, Inc. LawPay* ABA Retirement Funds™ Program* Casemaker®* Legal Nurse, Inc. Alabama Appleseed Center for Law & CLE Alabama LexisNexis® Justice, Inc. Clio* LocalLawyers.com.* Alabama Center for Comprehensive Investigative Group Dispute Resolution Merrill Corporation DrugProof Alabama Law Foundation Paralegal Solutions Plus Expedius Envoy, Inc. Alabama’s CollegeCounts™ 529 Fund Southern Technology Group Freedom Court Reporting, Inc. Alacourt.com™ Thomson Reuters GEICO®* Attorneys Insurance Mutual of the South, Inc. Volunteer Lawyers Program GilsbarPRO Baker & Baker Reporting and Video Services, Inc. Henderson & Associates Court Reporters, Inc. *Denotes an Alabama State Bar Member Bradford Health Services ISI Alabama, Inc.* Benefit Provider

318 SEPTEMBER 2013 | www.alabar.org 2013 ASB ANNUAL MEETING Thursday Highlights/Sponsors

Jim Pratt, David Perry, Judge John Carroll, Jim Williams, and Cooper Shattuck headed up Thursday’s discussion on court-funding problems and Just one of the many ways to relax at the A great team – Mike and Mickey Turner of Freedom solutions. Grand! Court Reporting 2013 ASB Annual Meeting Sponsors PLATINUM CapVal-American Business Baker Donelson Bearman International Law Section Freedom Court Reporting, Inc. Appraisers Caldwell & Berkowitz PC Jones & Hawley PC ISI Alabama, Inc.* Copeland Franco Screws & Gill PA Beasley Allen Crow Methvin Knight & Knight LLC Portis & Miles PC Litigation Section Family Law Section Labor & Employment Law Business Torts & Antitrust Law Maynard Cooper & Gale PC Gentle Turner Sexton Debrosse Section & Harbison Section McCallum Methvin & Terrell PC Leadership Forum Section Health Law Section Cain & Associates Engineers & Constructors, Inc. LexisNexis® Jinks Crow & Dickson PC GOLD Carr Allison Lightfoot Franklin & White LLC Legal Directories Publishing LocalLawyers.com* Faulkner University, Thomas Company, Inc.* Clio* Goode Jones School of Law Merrill Corporation McCallum Hoaglund Cook & Construction Industry Law GEICO®* Irby LLP Section Real Property, Probate & Trust Section Hare Wynn Newell & Newton LLP Wilkins Miller Hieronymus LLC Federal Court Practice Section Rosen Harwood PA Samford University, Wilmer & Lee PA Freese & Goss PLLC Cumberland School of Law GilsbarPRO Sirote Permutt PC White Arnold & Dowd PC Stone Granade & Crosby PC BRONZE Harris Caddell & Shanks PC Young Lawyers’ Section Workers’ Compensation Law Administrative Law Section Hill Hill Carter Franco Cole & Black PC Section Appellate Practice Section SILVER Daisy M. Holder Attorneys Insurance Mutual of *Denotes an Alabama State Bar Alacourt.com™ the South, Inc. Intellectual Property, Entertainment & Sports Law Member Benefit Provider Bradford Health Services Section

2013 ASB ANNUAL MEETING www.alabar.org | THE ALABAMA LAWYER 319 Friday Highlights

Young at heart are past presidents (front row) John Owens, Walter Byars, Fred Gray, Broox Holmes, Wade Baxley, Tom Methvin, (back row) Vic Lott, Ben Harris, Bill Clark, Jim Pratt, Sam Rumore, and Sam Crosby. Missing in action was Alyce Manley Spruell, who had already sprinted to her next meeting.

Making new friends at the “Madagascar” Circus Party

Proof that it’s not just seminars and committee meetings.

All dressed up with someplace to go! Magistrate Judge (ret.) Vanzetta McPherson and Circuit Judge Annetta Verin visit during the Women in the Law reception.

…as well as always-young Tutt Barrett and Enjoying the Young Lawyers’ Section/Leadership Forum Beach Party are JR Gaines, Monet McCorvey Kathy Barrett. Gaines, Ashley Swink Fincher and Cody Fincher…

320 SEPTEMBER 2013 | www.alabar.org 2013 ASB ANNUAL MEETING Saturday Highlights

Still serving the profession are 50-year members, front row, Robert B. French, Jr.; Charles D. Rosser; Billy C. Bedsole; and Judge (ret.) Gerald S. Topazi. On the middle row are Charles A. Trost; Emmett F. Hildreth, Jr.; Thomas S. Lawson, Jr.; Augustine Meaher, II;and Thad G. Long. In the back row are William J. Baxley and Julian D. Butler.

Christie Archer, longtime assistant to Phillip McCallum, President McCallum and Kelley McCallum are all smiles as the 2013 Annual Meeting winds down.

Brett Adair (far right), winner of the Grand Prize Getaway, with Bill Bass and Charlotte Bass Gardner of ISI Alabama, Inc., prize sponsor

Faces of the bar: 2011-12 past President Jim Pratt, President Priceless! Anthony Joseph and immediate past President Phillip McCallum

2013 ASB ANNUAL MEETING www.alabar.org | THE ALABAMA LAWYER 321 BOOK REVIEW

The Alabama Appellate Practice Guide, 2013 Edition By Ed Haden

Reviewed by Judge R. Bernard Harwood, Jr.

The Alabama Appellate Practice mandamus and certiorari. This is facili- Guide (2013 Edition) comprehensively tated by a detailed table of contents, a updates its predecessor (1st Edition, well-organized text, appendices of 2009), and adds new chapters on post- forms, an ample table of cases, and a judgment motions, agency appeals and thorough index. The book contains 20 criminal appeals. This helpful publication chapters, each of which covers an area continues its role as the in-depth, yet of appellate procedure in a logical order. fully “user-friendly” handbook on Numerous charts and time-tables are Alabama appellate procedure, and one also helpful. Additionally, a host of sec- that no practitioner who has any sort of ondary matters are fully explained, appellate case can afford to be without. including preserving error, cross Author Ed Haden of Balch & appeals, applications for rehearing, Bingham LLP has drawn on his exten- appellate motion practice, staying judg- Ed Haden sive knowledge of the ins and outs of ments, and proper composition of the appellate procedure to put together a record on appeal. Specialized matters remarkable “field guide” that shepherds such as amicus curiae briefs, federal appellate counsel through every stage certified questions and advisory opinions of every type of appellate proceeding. receive their own full treatment. An essential tool for the novice appel- As one who does a fair amount of late lawyer, the cogent, thoroughly cita- appellate work, I can truthfully say that tion-supported text also provides plenty I never proceed without consulting this of direction and advice for even the splendid resource, and doing so has, well-seasoned appellate practitioner. on more than one occasion, kept me The guide harmonizes the interactions from neglecting some necessary proof the applicable Alabama Rules of Civil cedural step or omitting some essen- Procedure, Rules of Criminal Procedure tial content from an appellate filing. and Rules of Appellate Procedure, Paper and electronic copies of this together with the interpretive case law. “must-have” handbook can be obtained It is an unfailingly accurate “GPS” that from the LexisNexis website under guides counsel through the intricacies of Bookstore, LexisNexis Store, every appellate undertaking−be it a regu- Jurisdiction and Alabama, or by going lar appeal, one of the permissible inter- to balch.com and selecting Practices locutory appeals or one of the and Appellate. The book retails for extraordinary writ procedures, such as $79. | AL

322 SEPTEMBER 2013 | www.alabar.org THE WOMEN’S SECTION OF THE ALABAMA STATE BAR: Honoring the Past, Preparing for the Future, Concerned about the Present By Sherrie L. Phillips and Dean Anita K. Hamlett

bidder and volunteer for participating in the auction and assisting The Women’s Section of the Alabama future female attorneys in Alabama. State Bar focuses on many projects; however, two of the section’s primary goals are to recognize the value, legacy and work of female Concern for the Present attorneys who paved the way for other female attorneys and to herald the accomplishments of young female law students establishing While Alabama’s female attorneys have made great strides, themselves as future leaders. national data suggests that retaining female attorneys in the practice of law is a challenge. If left unaddressed, this problem could be detrimental to young women seeking legal careers and to the legal Honoring the Past community as a whole. On July 19, 2013, at the Alabama Statistics released this year by the American Bar Association’s State Bar’s Annual Meeting, the Commission on Women in the Profession show that only 19.9 Women’s Section held its Maud percent of law firm partners are women and only 15 percent of McLure Kelly luncheon. Ms. Kelly equity partners are women.1 In addition, in the 200 largest law was the first woman to graduate firms surveyed, only four percent of the managing partners are from the University of Alabama women.2 In contrast, 46.3 percent of summer associates and 45 Kelly Stapp School of Law and the first woman percent of associates are women.3 to practice law in Alabama. She was These numbers reflect what has been called the “leaky pipeline;” one of the first southern women to argue a case before the United female associates are leaving the profession in large numbers before States Supreme Court. Ms. Kelly was a true groundbreaker for they reach the level of partner or manager.4 One study found that a female attorneys in Alabama. female attorney practices law for an average of nine and a half years, The 2013 honoree for the Maud McLure Kelly Award was Mary while a male attorney practices law an average of 19.5.5 Lee Stapp. She embodies the spirit of Maud McLure Kelly. She This trend is cause for concern. First, it is disheartening to see graduated from the University of Alabama School of Law in 1951 so few women on the management or partnership track given the and is best known for her service as an assistant attorney general, investments they have made in their legal careers. These women Department of Human Resources, and chief legal counsel and worked hard to earn their degrees, likely incurring a high debt- director of legal services for the Department of Pensions and load to do so. They have likely logged many hours as an associ- Security. She is widely known and respected as an advocate for ate, making personal sacrifices for the sake of their careers. children and the elderly, arguing cases at all court levels, including Second, there is an economic impact on the firms that employ the United States Supreme Court. these women. Firms invest time and money in their associates with the expectation that the investment will be recouped by the Preparing for the Future time the associates become partners. If a female associate does Just as the Maud McLure Kelly Award honors female leaders of not continue with the law firm that has invested in her, however, the past, the Women’s Section also looks to the future of the the firm’s investment is lost, and the knowledge and wisdom that women’s bar in Alabama. The Justice Janie L. Shores Scholarship the would-be female partner could have contributed to the firm is awarded to a worthy female law student who is an Alabama is also lost. Law firms should also be concerned about the trend resident and attends an Alabama law school. To fund this schol- given that corporate clients are requiring firms to match the cor- arship, the Women’s Section sponsors a silent auction during the porate client’s emphasis on race and gender equality. state bar’s annual meeting. The 2013 recipient of the Justice Janie L. Shores Scholarship was Identifying the Cause Hannah Hooks. The Women’s Section presented Hooks with a What happens to a female attorney in between the year that she check for $4,500. The section sincerely appreciates every donor, may be a Janie L. Shores Scholarship winner and the year she may

www.alabar.org | THE ALABAMA LAWYER 323 be a Maud McLure Kelly honoree? It is likely that the scarcity of The Women’s Section Addresses the women on the equity partnership track−evident to women at Challenge lower levels of the profession−contributes to the “leaky pipeline”: There is no easy solution, but mentoring seems to be a large piece [T]he scarcity of visible, senior, successful women in large of the puzzle.18 Mentoring has always been a benefit of joining and law firms sends a powerful message to other women, either being active in the Women’s Section, although it is not a specific goal those coming up the ranks within firms or those who are of or reason for creating the section. With these alarming statistics, making a decision whether to attend law school or to apply however, the section has begun to study and create structured men- for an associate position in BigLaw. The message−whether toring projects. To initiate these efforts, the Women’s Section has or not intended by those in power−is clear and simple: “You consulted Anita Hamlett, associate dean of student services at do not belong here.” Perhaps this, as much as anything, is Faulkner University’s Thomas Goode Jones School of Law. responsible for a trend . . . first noted in the 2011 Survey: the Dean Hamlett’s response paints a picture of how many female declining percentage of women attending law school.6 attorneys view mentoring and why it still matters. Her response reads in part: Anne-Marie Slaughter’s article, “Why Women Still Can’t Have It All,” further identifies some possible causes and potential solu- “I graduated law school in 1992. I was a first-generation tions.7 Slaughter discusses the myth that women can, all at the lawyer. Firms were actively recruiting young females and same time, have a successful career, raise beautiful and well- we were confident that if there were any differences behaved children, be a good wife, be a good home administrator, between male and female lawyers at that time, the scales be a good friend, and take care of aging parents. The premise of were generally tipped in our favor. Frankly, I credit my first Slaughter’s article is that the pressure to do all of these things job with a law firm to a shortage of women practitioners simultaneously and perfectly is a large reason women do not prepared to hit the ground running. remain in high-pressure/high-power positions.8 “I am so thankful that Lanier, Ford was my first step in my Slaughter was the first female director of policy planning at the career as a lawyer. Although she might never have recognized State Department.9 When asked why she left her government the extent of her influence, Donna Pate served as an out- career, she explained her desire to spend more time with her standing mentor to me. I watched how she balanced her deep family and her conclusion that a high-level government job was spiritual convictions with her commitment to her family and not conducive to that. She recounts the reactions from other her practice. Her dedication to her clients was genuine.” women as being either “disappointed” or “condescending.”10 Slaughter admitted that, prior to her stint at the State Dean Hamlett explains her current view of mentoring by dis- Department, she had always been the woman “on the other side cussing how her peer group’s views have changed. of this exchange”−“smiling the faintly superior smile” as another “I have noticed that several of the female lawyers of my gen- woman explained her decision to take time off and “congratulat- eration have found ways to come of age with contentment. ing herself on her unswerving commitment to the feminist There are some who have used their financial success to pay cause.”11 Slaughter’s opinion changed, though, and she concluded for assistance with maintaining the home, preparing meals that women cannot have it all simultaneously.12 and taxiing children to afterschool activities. Others have She argues that “having it all at the same time” is simply “air- made the decision to move off the partnership track to allow brushing reality.”13 The reality for most women is that, in addition to them time to make field days and slumber parties. A few working long hours full of stress and pressure, they are generally the have switched to practice areas that allow for more flexibility, caretakers at home and the general administrators of their families. leaving behind the courtroom for research or transactional Moreover, women have few female mentors with whom to dis- practice. Still others have left the practice altogether for very cuss the demands on their time, because those potential mentors successful careers that allow them to use their law degree as have left the profession. Or the potential mentors have made sac- a professor, librarian, administrator or regulator. rifices that young female attorneys are not willing to make. Slaughter mentions a young female attorney who cannot find any “In a nutshell, there is no perfect solution to our finding role models because the female partners or managers have made comfort with the issues we face as women. If we ‘like’ sacrifices the young attorney is not willing to make.14 As this where we are, we should be sharing directions to get there young female attorney states, “They take two years off when their with young lawyers. kids are young but then work like crazy to get back on track pro- “Unfortunately, we have been taught that the law, unlike fessionally which means that they see their kids when they are most professions, is a call to perfection. Since none of us is toddlers but not teenagers or really barely at all.”15 perfect, this mindset predestines us for failure. As women Slaughter calls on women of her generation−women who have in the law, we have a unique responsibility and opportunity reached the top of their respective careers−to be completely to encourage one another (individually and as a communi- forthright with young women (and men). They must stop per- ty) to redefine success and professionalism.” petuating the “have-it-all” mentality and admit that work-life balance in today’s economy and society is extremely difficult, if As the women who founded the Women’s Section know, not impossible.16 In addition, the leadership gap must be nar- female-to-female advice, networking and mentoring are blessings rowed so that women are equally represented in the political, with value beyond the legal profession. Thus, the need for men- corporate and legal fields.17 To do that, firms must retain female toring should be met with creative and innovative solutions, both attorneys between the associate and the partnership level. by the section and the bar as a whole.

324 SEPTEMBER 2013 | www.alabar.org To address the female attorney retention challenge, and also to 6. National Association of Women Lawyers and the NAWL partner young attorneys with more experienced attorneys, mentor- Foundation, Report of the Seventh Annual National Survey on ing programs sponsored by the Women’s Section are being sched- Retention and Promotion of Women in Law Firms, October 2012. uled around the state in the upcoming year. As the section seeks to 7. Anne-Marie Slaughter, Why Women Still Can’t Have It All, THE sponsor these events and speak to these issues, consider giving ATLANTIC, July 1, 2012, http://m.theatlantic.com/magazine/ freely of your time, wisdom, knowledge and energy−female and archive/2012/07/why-women-still-can-8217-t-have-it-all/ male attorneys alike. Please attend, get involved, mentor and spon- 9020/. sor young attorneys, and honor those who have paved the way for 8. Id. women in the profession in the state of Alabama. | AL 9. Id. 10. Id. Endnotes 11. Id. 1. American Bar Association Commission on Women in the 12. Slaughter believes this is also true of men. Id. Profession, A Current Glance at Women in the Law 2013, 13. Id. January 2013 (quoting National Association for Law Placement, Representation of Women Among Associates 14. Id. Continues to Fall, Even as Minority Associates Make Gains, 15. Id. December 2012); see also National Association of Women 16. Id. Lawyers and the NAWL Foundation, Report of the Seventh Annual National Survey on Retention and Promotion of 17. Id. Women in Law Firms, October 2012. 18. The lack of effective mentoring and female role models are 2. American Bar Association Commission on Women in the consistent themes throughout Slaughter’s article. Id. This Profession, supra note 1. desire for effective mentoring has also been a regular theme in articles written on the subject of attrition of female attor- 3. Id. neys, with all agreeing mentoring is a major tool for retaining 4. Id. female attorneys. See Epstein, supra note 5; NAWL, supra 5. Phyllis Horn Epstein, Attrition of Senior Women Lawyers: The note 1. Leaky Pipeline, 15 THE YOUNG LAWYER 2.

www.alabar.org | THE ALABAMA LAWYER 325 326 SEPTEMBER 2013 | www.alabar.org In Alabama We’ve Done Well, But the Challenge Has Only Begun PRO BONO WEEK 2013: OCTOBER 21−25

By J. Flynn Mozingo A pro bono study conducted in 2008 of the American Bar Association Death by the American Bar Association Penalty Representation Project’s revealed very encouraging news about Exceptional Service Award. In the past lawyers. According to the study: 1) three- few years, more than 4,000 Alabama fourths of lawyers voluntarily provide free lawyers have completed 2,300 pro bono legal services to a deserving cause or per- cases, donating more than 23,000 hours son; 2) lawyers are increasingly devoting of volunteer work. Last year the state bar, more hours to pro bono legal services; under the leadership of Jeanne Dowdle and 3) lawyers provide pro bono services Rasco, conducted a first-of-its-kind at nearly three times the rate of volunteer Justice Bus Tour in the Birmingham, work by the general population. Huntsville, Mobile and Montgomery areas. Yes, Alabama is a national leader in National leaders a very admirable and worthy cause! For the members of the Alabama State Bar, the results of the study are not sur- Need is still great prising. Alabama lawyers and the Our commitment to pro bono services Alabama State Bar are national leaders in has only just begun, though. In statistics providing and advocating pro bono serv- compiled by Alabama Possible, a ices. Alabama’s Pro Bono Week celebra- statewide nonprofit campaign of the tion is recognized by the American Bar Alabama Poverty Project, more than one Association as one of the best in the in six Alabamians, including one in four country−in fact, the American Bar children, live below the poverty level, i.e., Association has an online video library of an annual income of below $17,000 for a Alabama attorneys extolling the personal family of three. More than 41 percent of and professional benefits from their com- Alabama high school students will drop mitment to pro bono work. Recently, our out of school. In addition, Alabama ranks own Henry Callaway was awarded the 42nd in per capita income and has one of American Bar Associations’ Pro Bono the largest income gaps in the nation. Publico award, and the firm of Bradley Thus, the need is great and will remain Arant Boult Cummings is the recipient great for many years to come.

www.alabar.org | THE ALABAMA LAWYER 327 We must remain dedicated and focused of Law and the University of Alabama their clients’ needs. The poverty simula- on pursuing justice for all the members of School of Law, will be hosting free legal tion will be held at Cumberland School of our communities, and using our time, tal- clinics for general advice and for a pletho- Law in October. ents and treasure to help the least among ra of legal issues, including elder law, fam- It is great to be an Alabama lawyer, and us. This year, we expect almost half of our ily law and Wills for Heroes. They need it is especially great to be in a position to low-income households to need profes- and want your help. The state bar, bar help where there is much need. If you sional legal help. In years past, however, commissioners and local bar presidents have provided pro bono services in the more than 80 percent of these households will request proclamations from past, we congratulate and thank you, but went without help, or received only mini- Governor Bentley and from local govern- we still need your help and commitment, mal assistance. ing bodies to raise awareness. In addition, and more of it, if possible. Alabama lawyers will take to the airwaves If you have not volunteered, there are in radio and television interviews, broad- numerous ways you can get involved. How to get involved cast messages and announcements, and Contact your local bar association or your This is the fifth year that Alabama has will speak at Rotary, Optimist and other bar commissioner; Cumberland, celebrated Pro Bono Week. Alabama clubs to spread the word. Alabama, Jones, Miles Law School, or lawyers, local bar associations, law firms Birmingham School of Law; or the ASB and law schools will again be hosting free Volunteer Lawyers Program, the legal clinics, fund-raisers and other activi- Gain greater insight Birmingham Bar Association Volunteer ties to help the least among us, to foster In addition, the Alabama State Bar’s Lawyers Program, the Madison County community awareness of their plight and Pro Bono Week Task Force is organizing Volunteer Lawyers Program or the to encourage fellow attorneys to go a poverty simulation to give pro bono South Alabama Volunteer Lawyers beyond themselves and give the benefits lawyers the opportunity to experience the Program. Attend and support the pro of their skills and talents to the most life and legal hurdles faced by their bono celebrations in your community. needy in our state. clients, from their clients’ perspective. In There is a tremendous need for your There are many ways to get involved. turn, pro bono lawyers will see first-hand help, to ensure that justice is available for Local bars, along with or in addition to the importance and value of their services everyone. Thank you for your support and Cumberland School of Law, Jones School to the client, and gain greater insight into have a great Pro Bono Week 2013! | AL

328 SEPTEMBER 2013 | www.alabar.org New Eleventh Circuit Pattern Jury Instructions by Will Hill Tankersley The life of the law may be experience, but putting the law into clear, Trademark Working Group accurate jury instructions is all about precision and time. Drafting solid and Theodore H. (“Ted”) Davis (Kilpatrick Townsend & Stockton LLP, Atlanta) understandable pattern jury instructions takes a commitment from lawyers who have plenty of other (paying) things to do. The Eleventh Circuit is fortu- Michael D. Hobbs (Troutman Sanders LLP, Atlanta) nate to have lawyers willing to give of their time in service of trial by jury. Leslie J. Lott (Lott & Fischer, Coral Gables) In May 2013, the Eleventh Circuit Pattern Jury Instructions Committee Richard W. (“Rich”) Miller (Ballard Spahr LLP, Atlanta) approved the 2013 Eleventh Circuit Pattern Jury Instructions. This is the latest in William H. (“Bill”) Needle (Ballard Spahr LLP, Atlanta) a series of Eleventh Circuit jury instruction updates. The first version of the Jacylyn T. Shanks (Kilpatrick Townsend & Stockton LLP, Atlanta) Eleventh Circuit Pattern Jury Instructions was published in 1980 (by a predeces- Will Hill Tankersley (Balch & Bingham LLP, Birmingham) sor committee in the former Fifth Circuit). The most recent version was in 2005. Until the 2013 version was approved, the Eleventh Circuit had no comprehensive copyright and trademark pattern jury instructions. With the 2013 version, Securities Working Group the Eleventh Circuit joins the Seventh and Ninth circuits in offering pattern jury Eric I. Bustillo (Securities & Exchange Commission, Atlanta) instructions that specifically address copyright and trademark issues. Krissi T. Gore (Chitwood Harley Harnes LLP, Atlanta) The 2013 Eleventh Circuit Pattern Jury Instructions also include the following substantive areas of the law:1 Elizabeth Gringold Greenman (Alston & Bird LLP, Atlanta) Corey D. Holzer (Holzer Holzer & Fistel LLC, Atlanta) • Adverse Employment Action Claims; Gregory E. Keller (Chitwood Harley Harnes LLP, Atlanta) • Civil Rights Constitutional Claims; John L. Latham (Alston & Bird LLP, Atlanta) • Securities Act; and M. Graham Loomis (Securities & Exchange Commission, Atlanta) • Jones Act–unseaworthiness M. Robert Thornton (King & Spalding LLP, Atlanta) The Eleventh Circuit Pattern Jury Instruction Committee (“Committee”) Kristin B. Wilhelm (Securities & Exchange Commission, Atlanta) was comprised of: Hon. Donald M. Middlebrooks, district judge (S.D. Fla.); Employment Working Group Hon. Inge Johnson, district judge (N.D. Ala.); Edward D. Buckley, III (Buckley Klein LLP, Atlanta) Hon. W. Keith Watkins, chief district judge (M.D. Ala.); Professor Thomas A. Eaton (University of Georgia School of Law, Athens) Hon. William S. Duffey, Jr., district judge (N.D. Ga.); and Nancy E. Rafuse (Rafuse Hill & Hodges LLP, Atlanta) Hon. Clay Land, district judge (M.D. Ga.) Dean Rebecca H. White (University of Georgia School of Law, Athens) The copyright jury charge drafting oversight responsibilities were originally held by Judge Mark Fuller, who was at that time the chief judge of the United States District Court for the Middle District of Alabama. When Judge Watkins RICO Working Group became chief judge for that court, he assumed the oversight responsibilities. John E. Floyd (Bondurant, Mixson & Elmore LLP, Atlanta) For the trademark jury charges, Judge Duffey of the United States District Phyllis B. Sumner (King & Spalding LLP, Atlanta) Court for the Northern District of Georgia had the oversight responsibilities. To form the working groups, the judges selected a retired Eleventh Circuit Court of Appeals judge and practitioners, all of whom have background and Jones Act Working Group experience in their respective areas of practice. Colin A. McRae (Hunter Maclean, Savannah) Eleventh Circuit pattern jury instructions come in three parts: a.) jury Copyright Working Group charge, b.) special interrogatories and c.) annotations and comments. Joseph M. (“Joe”) Beck (Kilpatrick Townsend & Stockton LLP, Atlanta) Members of the two working groups in which I served (copyright and trademark) cast a broad net to create comprehensive jury instructions based on Hon. Stanley F. Birch, Jr. (United States Circuit Judge for the Eleventh Circuit case authority, United States Supreme Court case authority Eleventh Circuit Court of Appeals, ret., JAMS ADR, Atlanta) and the relevant federal statutes. The annotations and comments are a Jeffrey S. Boyles (Allen, Dyer, Doppelt, Milbrath & Gilchrist PA, Orlando) primer on Eleventh Circuit jurisprudence as to copyrights and trademarks. Patricia Clotfelter (Baker, Donelson, Bearman, Caldwell & Berkowitz PC, The committee directed that jury instructions be in plain English. To improve Birmingham) clarity, Professor Bryan A. Garner, who has published extensively on the craft of Summer Austin Davis (Bradley Arant Boult Cummings LLP, Birmingham) legal writing, assisted in the editing of the 2013 Eleventh Circuit Pattern Jury Jeffrey D. Dyess (Bradley Arant Boult Cummings LLP, Birmingham) Instructions. (After Prof. Garner made his edits, the draft was sent back to the Michael L. (“Mike”) Edwards, (Balch & Bingham, LLP, Birmingham) working groups to confirm that the edits were a correct statement of the law.) Linda A. Friedman (Bradley Arant Boult Cummings LLP, Birmingham) Each of these working groups devoted hundreds of hours of un-compensated, and, until now, unsung efforts to perform a valuable service for the bench, bar, Harriet Thomas Ivy (Baker, Donelson, Bearman, Caldwell & Berkowitz litigants and jurors. The 2013 Eleventh Circuit Pattern Jury Instructions can be PC, Birmingham) found at http://www.ca11.uscourts.gov/documents/pdfs/civjury.pdf. | AL W. Andrew Pequignot (Kilpatrick Townsend & Stockton LLP, Atlanta) Kimberly T. Powell (Balch & Bingham LLP, Birmingham) Endnote Paul M. Sykes (Bradley Arant Boult Cummings LLP, Birmingham) 1. The 2013 Eleventh Circuit Pattern Jury Instructions also Will Hill Tankersley (Balch & Bingham LLP, Birmingham) include preliminary, trial, basic and basic instructions involving J. Dorman Walker (Balch & Bingham LLP, Montgomery) certain claims.

www.alabar.org | THE ALABAMA LAWYER 329 ASB President Anthony “AJ” Joseph and Fred Ury, chair of the ABA Standing Committee on Professionalism

STATE BAR LEADERSHIP FORUM Receives National Award from American Bar Association

An elite committee of advancement of servant-minded leadership training within the bar and the larger the American Bar Association community. They commended the (ABA), the Standing Committee on Alabama State Bar Leadership Forum for Professionalism, selected the Alabama its innovative, thoughtful and exceptional State Bar’s Leadership Forum as one of content, for its powerful and positive con- three recipients to receive the 2013 E. tinuing impact on emerging leaders in the Smythe Gambrell Professionalism bar community and for the extraordinary Award. The Gambrell Award is the example it has established that others may nation’s leading program honoring the emulate.” best professionalism programs and prac- In announcing the award, the ABA tices of law schools, bar associations, pro- Committee on Professionalism said, “The fessionalism commissions and other judges found the Alabama program to be law-related organizations. a beacon of excellence for bars across the Representing the Leadership Forum at the ABA ASB President Anthony A. Joseph said, nation in this critically important devel- Annual Meeting were Ed Patterson, Rebecca “This award validates the Leadership opmental area.” The Alabama State Bar DePalma and Andrew Nix. Forum as a national example of innova- Leadership Forum began in 2005. The tive professionalism programs. Leadership Forum is highly competitive, Participants are required to complete a accepting up to 30 attorneys each year. rigorous education and training process Only 40 percent of those who apply are focusing on leadership, ethics and career chosen in any one year. development. Noting a wide variety of The forum has an alumni base of 262 teaching methods in more than 60 ses- lawyers. In January 2014, the Leadership sions with 200 faculty members, the ABA Forum will celebrate its tenth year as it Professionalism Committee was particu- focuses on relevant and strategic training larly impressed with the program’s for an emerging generation of young ground-breaking and exceptional lawyers. | AL

330 SEPTEMBER 2013 | www.alabar.org CONSTRUCTION & ENGINEERING EXPERTS

Forensic engineering and investigative inspection work for Commercial buildings, Residential, & Industrial facilities.

■ Construction delay damages ■ Construction defects ■ Structural issues ■ Foundations, settlement ■ Sinkhole Evaluations ■ Stucco & EIFS ■ Toxic Sheetrock & Drywall ■ Electrical issues 2013 LEADERSHIP FORUM ■ Plumbing & Piping Problems ■ Air Conditioning Systems ■ Fire & Explosion Assessments Participants ■ Roofing problems ■ Flooding & Retention Ponds ■ Engineering Standard of Care issues Gray M. Borden, U.S. Attorney’s Office, Middle District of Alabama, Montgomery ■ Radio & Television Towers John A. Brinkley, Jr., Brinkley & Chesnut, Huntsville Contact: Hal K. Cain, Principal Engineer Ryan K. Buchanan, U.S. Attorney’s Office, Northern District of Alabama, Birmingham Cain and Associates Engineers & Constructors, Inc. [email protected] • www.hkcain.com st Pamela L. Casey, 41 Judicial Circuit, District Attorney’s Office, Oneonta 251.473.7781 • 251.689.8975 John W. Clark, IV, Bainbridge, Mims, Rogers & Smith LLP, Birmingham Diandra S. Debrosse, Gentle, Turner, Sexton, Debrosse & Harbison, Hoover Mary Margaret W. Fiedler, Supreme Court of Alabama, Montgomery W. M. Bains Fleming, III, Norman, Wood, Kendrick & Turner, Birmingham Benjamin Y. Ford, Armbrecht Jackson LLP, Mobile Scott M. Speagle, Webster, Henry, Lyons, White, Bradwell & Black PC, Montgomery Jeremiah M. Hodges, Hodges Trial Lawyers PC, Huntsville Brett A. Ialacci, Badham & Buck LLC, Birmingham Andrew B. Johnson, Bradley Arant Boult Cummings LLP, Birmingham F. Leslie Lambert, The Lambert Law Office, Camden Jonathan W. Macklem, Christian & Small LLP, Birmingham J. Brannon Maner, Gordon, Dana, Knight & Gilmore LLC, Birmingham R. Clifford Mendheim, Prim & Mendheim LLC, Dothan Mark B. Moody, Alabama State Bar, Montgomery Abigail L. Morrow, Cadence Bank NA, Birmingham Christopher J. Nicholson, Jones & Hawley PC, Birmingham Roben H. Nutter, East Alabama Medical Center, Opelika Jaffe S. Pickett, Legal Services Alabama, Montgomery Holly L. Sawyer, Lewis, Brackin, Flowers & Johnson, Dothan Patrick H. Strong, Balch & Bingham LLP, Birmingham Michael F. Walker, Bradley Arant Boult Cummings LLP, Birmingham Hon. Stephen C. Wallace, 10th Judicial Circuit, Criminal Division, Birmingham Joshua B. White, Stephens Millirons PC, Huntsville M. Maran White, Auburn University, General Counsel’s Office, Auburn Justin G. Williams, Tanner, Guin & Crowell LLC, Tuscaloosa Nathan P. Wilson, Alabama Court of Civil Appeals, Montgomery

www.alabar.org | THE ALABAMA LAWYER 331 Addiction and Mental Illness, and the Benefits of Recovery By Robert B.Thornhill Our country faces many Numerous studies have shown that the challenges today: rate of addiction among those in the legal our mounting national debt, the sluggish profession is roughly twice that of the economy, terrorism, crime, and educa- general population! The same is true tion, to mention only a few. However, the regarding depression. It is important to number one public health problem we remember that lawyers and judges are not face is addiction. According to a new and immune to these problems. Lawyers rou- comprehensive survey released recently tinely provide counsel and guidance to by Faces and Voices of Recovery entitled clients struggling with addiction or men- “Life in Recovery,” the costs of addiction tal illness, yet often fail to recognize or to the individual and to our country are assist when they or a colleague are devastating. The study found that during exhibiting symptoms of impairment. The their active addiction, 50 percent of Alabama Lawyer Assistance Program is respondents had been fired or suspended committed to providing confidential from their jobs one or more times, 50 assistance to members of the legal profes- percent had been arrested at least once sion. Part of this assistance involves edu- and a third incarcerated at least once, cation regarding addiction and mental contributing to a total societal cost of illness. This article will focus primarily on $343 billion annually.1 this information.

332 SEPTEMBER 2013 | www.alabar.org Addiction is a chronic, progressive and disease, liver disease (cirrhosis), pancreati- know in their hearts to be wrong. It is fatal illness. The disease begins at an early tis, fractures and injuries, HIV/AIDS, STDs, self-evident that no human being can, stage when the compulsive use of sub- and a host of other maladies. Over time, the over time, engage in behaviors that violate stances appears to be helpful, and will con- addict will experience health problems their own moral code, and simultaneously tinue without treatment and recovery to directly attributable to their compulsive use feel good about who they are! The fact is the final stages, at which time the addict of alcohol or drugs. The healthcare costs to that most addicts, largely unconsciously, will be forced to use around the clock to individuals, families, businesses and our come to hate themselves. In this condi- avoid the ravaging effects of physical with- country are incalculable. tion addicts remain restless, irritable, dis- drawal. Most addicts do not survive until Additionally, as this dependency pro- contented and quick to anger. Most also the final stages of addiction; they die in a gresses, the addict stops maturing emo- become consumed with self-centered fear, number of ways including automobile and tionally and often regresses in his or her self-pity and self-loathing. other vehicle accidents, organ failure due ability to react to life’s problems and chal- Mental health is also negatively affected to chronic ingestion of drugs or alcohol, lenges in a healthy and productive way. I by the disease of addiction. Most alco- homicide or suicide, accidental drowning have often asked the question, “Have you holics and addicts possess traits for depres- or burning, overdose, and so on. The dis- ever known an addict who handles his sion, anxiety, bipolar disorder and even ease of addiction is characterized by anger well?” In all my years as a therapist, personality disorders. Many easily meet inevitably worsening consequences in I have never received a “yes” response. the diagnostic criteria for one or more of every area of the addict’s life: physical, There are many reasons for this, but a pri- these mental illnesses. I remember well a emotional, mental and spiritual. mary cause of the addict’s emotional conference I attended in Nashville during Addicts and alcoholics experience a vari- immaturity and difficulty with anger aris- which researchers revealed that the brain ety of physical pathologies due to a signifi- es from the fact that all addicts are com- scans of cocaine and amphetamine addicts cantly increased risk for cancer, heart pelled to engage in activities that they coming off a drug binge were identical to

www.alabar.org | THE ALABAMA LAWYER 333 the scans of those diagnosed with paranoid Without exception, these individuals that AA had hit upon a method that schizophrenia. described how essential their genuine solved the problem of excessive drinking. Because addiction is so often accompa- participation in recovery and AA had In retrospect, my first two or three years nied by one or more additional mental been to their overall mental health. One of contact with AA were the most exciting health disorders such as depression, anxi- elaborated on how her AA participation in my whole professional life. Hopeless ety or bipolar disorder, there have been and abstinence from alcohol had signifi- drunks were being lifted out of the gutter. increasing efforts to effectively treat these cantly increased the effectiveness of the Individuals who sought every known “co-occurring disorders.” For many medication prescribed for her bipolar dis- means of help without success were addicts, symptoms of depression or anxiety order. In fact, AA and abstinence had so responding to this new approach. To be lessen over time and become manageable effectively held her symptoms under con- close to any such group, even by proxy, simply by working the 12-step program trol that she came to mistakenly believe was electrifying. In addition, professional- offered by Alcoholics Anonymous (AA) that her bipolar illness was cured and she ly, a whole new avenue of problems of and utilizing coping skills acquired while discontinued her medication regimen. Of alcohol had opened up; somewhere in the in treatment. For others, these co-occur- course, the symptoms of her bipolar disor- AA experience was the key to sobriety.”4 ring disorders will persist and require der soon returned. It has been well known To the delight and amazement of any- ongoing psychiatric treatment, medication for many years that emotional instability one who has truly participated in the AA management and therapy. greatly increases the likelihood of relapse program, we have found that when an In an article in Counselor magazine, into active addiction. Shortly after the alcoholic begins to straighten out and John Seery wrote about the experiences of return of her hypomania and depression grow spiritually, he also begins to grow a number of his patients diagnosed with symptoms, she was using alcohol daily. and heal physically, emotionally and addiction and with at least one other She was subsequently committed by her mentally. mental health disorder that required psy- family to a local hospital, where she Lawyers spend their entire professional chiatric medication management. underwent detoxification to avoid the life- lives helping others with their prob- threatening symptoms of delirium lems−problems that often involve addic- tremors (DTs). With resumption of her tion. They provide assistance and services medication regimen, AA and abstinence, to improve the lives of their clients. Yet, her mental health symptoms stabilized.2 their own problems often go unacknowl- Those of us who have worked in the edged and untreated. The Alabama field of addiction agree that the area of Lawyer Assistance Program and our com- human life that is most affected by the dis- mittee of volunteer attorneys stand ready ease of addiction is the spiritual dimen- to assist at any time. We encourage those sion, and that in order to truly recover one of you who are aware of a member of the must focus first on matters of the spirit. legal community struggling with addic- The founders of the fellowship of tion or another mental health disorder to Alcoholics Anonymous discovered that contact our office. You can provide infor- alcoholics are, most importantly, spiritual- mation anonymously, and you can rest ly sick. Through trial and error and, I assured that we will approach this indi- believe, divine intervention, they came vidual with compassion, respect and an upon a spiritual solution to the disease of honest effort to provide confidential alcoholism that has since become the assistance. blueprint for countless other 12-step pro- There is a solution to the problem of grams that have proven to be life-chang- addiction and for those with co-occurring ing and effective. Many experts agree that disorders. Evaluation, treatment, medica- AA is a valuable and effective part of tion management and therapy, when need- recovery. For example, Gorski and Miller ed, and genuine participation in the stated, “Alcoholics Anonymous is the sin- 12-Step recovery has proven to be an effec- gle most effective treatment for alco- tive and life-changing process for literally holism. More people have recovered from millions of addicts, their families, co- alcoholism using the program of AA than workers and friends. But, the problem any other treatment. It is for this reason must first be acknowledged! Those with that AA needs to be a vital part of any the courage to reach out and call our office alcoholic’s sobriety plan.”3 Additionally, may well make the difference between life Harry M. Tiebout, MD, who served on the and death for a friend or colleague. board of trustees for AA from 1957 to I conclude with additional data from 1966, stated, “I developed a conviction the comprehensive survey completed by

334 SEPTEMBER 2013 | www.alabar.org Faces and Voices of Recovery (see the sur- this process, and experience for yourself Support Groups and the Dual- vey at facesandvoicesofrecover.org). A total the satisfaction of playing a part in leading Diagnosed: A Perspective,” June of 3,228 surveys were completed. On a lost soul to health and sobriety. | AL 2012, Vol. 13, No.3, pp. 66 and 67 average, these respondents had been in 3. T. Gorski and M. Miller (1986), Staying Sober: A Guide for Relapse active addiction for 18 years and entered Endnotes Prevention, Independence, MO: recovery at age 36. Over half had been in 1. Alexandre Landet, Ph.D., Report on Herald House recovery for 10 years or longer at the time Survey Findings “Life In Recovery” 4. H. Tiebout (1999), Harry Tiebout: of the survey. The following is a partial Faces and Voices of Recovery (face The Collected Writings, Center City, list of benefits derived from their partici- sandvoicesofrecovery.org), April MO, Hazelden Publishing 2013 pation in recovery: 5. Ibid 2. John F. Seery, MSCRC, CCDP • Paying bills on time and paying back Diplomat, Counselor, “12-Step personal debt doubled; • Fifty percent more people pay taxes in recovery than when they are in active addiction; • Planning for the future (e.g., saving for retirement) increases nearly threefold; • Involvement in domestic violence (as perpetrator or victim) decreases dramatically; • Participation in family activities increases by 50 percent; • Volunteering in the community increases nearly threefold; • Frequent utilization of costly emer- gency room departments decreases tenfold; • Involvement in illegal acts and involvement with the criminal justice system (e.g., arrests, incarceration, DUIs) decreases tenfold; • Steady employment increases by over 50 percent; • Twice as many people further their education or training; and • Twice as many people start their own business.5 The negative consequences of active addiction inevitably and progressively worsen the quality of life over time. Without intervention, treatment and recovery, the results can be fatal: jail, institutions and even death. The wonder- ful news is that with recovery, life keeps getting better as this process progresses! For those of us in recovery, it is one of the highlights of our lives to have the opportunity to assist those who are struggling against the throes of active addiction and to witness the miraculous and life-changing power of recovery. Please help us in

www.alabar.org | THE ALABAMA LAWYER 335 MEMORIALS

Judge John Brantley Crawley Johnny, as the members of our family called him, was my first cousin on my Daddy’s side. He was much more than a cousin to me, and particularly as I entered into the legal profession, he became a mentor and a friend. He was a great influence and help to me and I will forever be indebted to him for his guidance and interest in my life. One cannot eulogize Judge John Crawley (who died June 4, 2013) without making reference to his first race for the Alabama Court of Civil Appeals. Johnny had been appointed by Gov. Hunt as a circuit judge in Pike County Judge John Brantley and, like a lot of political appointees, did not survive the first election. Nonetheless, Crawley a few years later, some power brokers in the state convinced Johnny to qualify and run for an open position on the court of civil appeals. My daddy told me the story again last night and here it is from his memory: Johnny was called to a meeting by informal GOP leaders to discuss the upcoming 1994 general election. He was still associated with the Republican Party due to his appointment as a circuit judge. I am not aware of who was at the meeting, but, apparently, they convinced him to run for the Alabama Court of Civil Appeals. He stopped by to visit with my daddy to solicit his aid in the campaign. My father, who was still working with state EMA, agreed to help as much as he could. Weeks went by and finally my father called Johnny. “It’s getting close to the election. Shouldn’t we get together with your people and get some things going?” Johnny told him he wanted to wait a bit longer. A couple more weeks went by and my daddy called Johnny again. This time Johnny told him he had decided not to campaign. My father, the great predictor of political races that he is, told him he couldn’t win without doing something. Johnny said he understood but he had made up his mind. He won that race 525,000 to 514,000 votes. He got one campaign contribution and gave it to another candidate who needed it worse that he did. He gave one political speech to the Pike County Republican Party only because he grew up there. Yet, he prevailed in what will go down in Alabama history as the only truly flawless campaign ever executed. Regardless of the circumstances that got him the job, Johnny went to work very quickly and I think proved himself with his work ethic and strong legal background. He won a second term, this time by campaigning, and was soon elevated to the position of presiding judge of the court of civil appeals. A quick search this morning revealed that Johnny’s name is mentioned in over 2,000 reported decisions. He is often quoted on many issues by the Alabama Supreme Court, in particular on grandparent visitations and common law marriages. I was looking over some of Johnny’s cases this morning and came across one of his dissents. I want to quickly explain for the non-lawyers about a dissent. On an appellate court such as Johnny sat, the court had to decide cases appealed to them and issue a written decision about the case. The workings of every appellate

336 SEPTEMBER 2013 | www.alabar.org court are slightly different, but basically they would vote on Larry. It presumably affected their vision. It forced Johnny to how the case should turn out. If you didn’t agree with the hold a book at an angle to be able to read. This is such a majority vote, you could write your own dissent. The written phenomenal accomplishment when you consider that the pri- dissent is reported along with the majority opinion. The dis- mary task of a law student or lawyer or judge is to pour over sent I read of Judge Crawley’s disagreed with the majority law books and briefs. because they overruled the trial judge’s decision. He believed Johnny’s quality of life over the last few years was not good. that the trial judge−the judge who actually oversaw the He came to my daddy’s birthday this year and it was a real case−was in a better position to make a decision than a undertaking for Sherry and Johnny. Yet, I never heard him bunch of judges in Montgomery. complain about anything. He still had his sense of humor and One of his clerks or judicial assistants would do a better was still interested in what was happening in my life. For job on this, but I recall Johnny telling me one time that he those who love and know Johnny, we hated seeing him like had more of his dissents adopted by the supreme court than that. And still, because we are selfish by nature, we wish he anybody else on his court. was still here with us now−even in his current condition, he Of course, this is the ultimate “I told you so,” but Johnny was a delight to be around. I remember very little of my Uncle was not that kind of person. I remember visiting with him at Douglas, Johnny’s father. I do remember he had a kind and his office in the Judicial Building in Montgomery. He was gentle way and was fun to be around. Johnny had the same always so relaxed and easy-going. Here was this guy from way about him. As soon as I heard Johnny died, I was struck Banks, Alabama−can’t even really claim to be from the City by the thought that I wish I had spent more time with him. of Brundidge−on one of the highest courts of our state. Yet, As Christians, we believe that we have a purpose here on he was always still very humble and hardworking. Earth. Johnny, I am sure, believed that and wanted to make a One of the most remarkable things about Johnny that difference. He affected thousands of lives in his rulings and by most people might not know is that he had very poor eye- his relationship with others. He made excellent use of the time sight. My sister, Beth, used to work for him when he was a God gave him here. We miss him, but he did what we all want lawyer in Troy. She said that Johnny’s mother, my Aunt to do−he left the world a better place. God bless Judge John Wonnie Mae−what a great southern name−had measles Crawley. We are so grateful for the time we had with him. when she was pregnant with Johnny and his twin brother, −Benjamin M. Bowden, probate judge, Covington County

Lamar, Mary Ellen Decatur Brent, Bertram Leon Rinehart, Edmon Loftin Admitted: 1986 Ashville Montgomery Died: April 27, 2013 Admitted: 1977 Admitted: 1955 Died: April 14, 2013 Longshore, William Levi, Jr. Died: June 11, 2013 Birmingham Blackwell, Rev. James Warren Swift, Anne Hollis Geer Admitted: 1950 Saginaw Birmingham Died: May 24, 2013 Admitted: 1957 Admitted: 1978 Died: May 2, 2013 Ludlum, Georgia Ann Hidle Died: April 10, 2013 Dothan Brown, Roger Alan Waller, Hon. Bogue Maultsby Admitted: 1995 Birmingham Montgomery Died: April 26, 2013 Admitted: 1970 Admitted: 1952 Died: June 5, 2013 Mitchell, Thomas Elbert Died: June 24, 2013 Huntsville Jones, Donald Rush, Jr. West, Carl Jackson, Jr. Admitted: 1982 Montgomery Birmingham Died: May 8, 2013 Admitted: 1990 Admitted: 1980 Died: June 25, 2013 Mitchell, William Eason Died: April 27, 2013 Tuscaloosa Admitted: 1975 Died: May 20, 2013

www.alabar.org | THE ALABAMA LAWYER 337 THE APPELLATE CORNER

By Wilson F. Green Wilson F. Green is a partner in Fleenor & Green LLP in Tuscaloosa. He is a summa cum laude graduate of the University of Alabama School of Law and a former law clerk to the Hon. Robert B. Propst, United States District Court for the Northern District of Alabama. From 2000-09, Green served as adjunct professor at the law school, where he taught courses in class actions and complex litigation. He represents consumers and businesses in consumer and commercial litigation.

Wilson F. Green By Marc A. Starrett Marc A. Starrett is an assistant attorney general for the State of Alabama and represents the state in criminal appeals and habeas corpus in all state and federal courts. He is a graduate of the University of Alabama School of Law. Starrett served as staff attorney to Justice Kenneth Ingram and Justice Mark Kennedy on the Alabama Supreme Court, and was engaged in civil and criminal practice in Montgomery before appointment to the Office of the Attorney General. Among other cases for the office, Starrett successfully prosecuted Bobby Frank Cherry on appeal from his murder convictions for the 1963 bombing of Birmingham’s Sixteenth Street Baptist Church.

This is our annual “crunch” issue–where we try to cram into one issue (a) upcoming cases on the U.S. Supreme Court’s docket for this coming October term, (b) significant decisions from the end of the U.S. Supreme Court’s past October term and (c) the usual May uptick in the haul of decisions from the state courts. Since space is scarce, brevity is boss−and thoroughness (though not Paradise) lost. Selected Upcoming Cases in the October 2013 United States Supreme Court Term Marc A. Starrett Madigan v. Levin, No. 12-872: Whether state and local government employees may avoid the federal Age Discrimination in Employment Act’s comprehensive remedial regime by bringing age discrimination claims on Equal Protection grounds Atlantic Marine Constr. Co. v. USDC, No. 12-929: (1) Whether review of forum- selection clauses is limited to a discretionary, balancing-of-conveniences analysis under 28 U.S.C. § 1404(a); and (2) whether district courts should allocate the bur- dens of proof among parties seeking to enforce or to avoid a forum-selection clause Schuette v. Coalition to Defend Affirmative Action, No. 12-682: Whether a state violates the Equal Protection Clause by amending its constitution to prohibit race- and sex-based discrimination or preferential treatment in public-university admissions decisions Heimeshoff v. Hartford Life & Acc. Ins. Co., No. 12-729: When should a statute of limitations accrue for judicial review of a disability adverse benefit determination under ERISA?

338 SEPTEMBER 2013 | www.alabar.org DaimlerChrysler AG v. Bauman, No. 11-965: Can a court criminal defendant to retain counsel of choice, the Fifth and exercise general personal jurisdiction over a foreign corpora- Sixth amendments require a pre-trial, adversarial hearing at tion based solely on the fact that an indirect corporate sub- which the defendant may challenge the evidentiary support sidiary performs services on behalf of the defendant in the and legal theory of the underlying charges forum state? Walden v. Fiore, No. 12-574: (1) Whether due process permits a court to exercise personal jurisdiction over a defendant whose sole “contact” with the forum state is his RECENT CIVIL DECISIONS knowledge that the plaintiff has connections to that state; and (2) whether the judicial district where the plaintiff suf- From the Alabama fered injury is a district “in which a substantial part of the events or omissions giving rise to the claim occurred” for Supreme Court purposes of establishing venue under 28 U.S.C. § 1391(b)(2) even if the defendant’s alleged acts and omis- Wrongful Death sions all occurred in another district Ex parte Tyson Foods, Inc., No. 1110931 (Ala. May Kansas v. Cheever, No. 12-609: Whether, when a crimi- 24, 2013) nal defendant affirmatively introduces expert testimony that Amendment to change and add parties to wrongful death he lacked the requisite mental state to commit capital mur- workers’ compensation action presented issue of capacity der of a law enforcement officer due to the alleged tempo- and not standing, and therefore was curable by amendment rary and long-term effects of the defendant’s and did not require dismissal of case methamphetamine use, the state violates the defendant’s Fifth Amendment privilege against self-incrimination by rebut- Arbitration; Post-Award Review; ARCP 71b ting the defendant’s mental state defense with evidence from Guardian Builders, LLC v. Uselton, No. 1111375 (Ala. a court-ordered mental evaluation of the defendant May 31, 2013) Fernandez v. California, No. 12-7822: Whether a defen- Held: (1) arbitration loser’s initial motion to vacate in cir- dant must be personally present and objecting when police cuit court was not in compliance with ARCP 71B, which officers ask a co-tenant for consent to conduct a warrant- requires a “Notice of Appeal” of the award, but (2) under less search or whether a defendant’s previously stated objec- ARCP 71B, the circuit court must first enter judgment on tion, while physically present, to a warrantless search is a the award, and then the loser is to proceed to file a Rule 59 continuing assertion of Fourth Amendment rights which can- motion, neither of which was done in this case not be overridden by a co-tenant Mt. Holly v. Mt. Holly Gardens Citizens in Action, No. 11- Class Certification Grant Affirmed with- 1507: Whether disparate impact claims are cognizable out Opinion under the Fair Housing Act Lexmark Int’l., Inc. v. Static Control Components, No. 12- Tri State Knife Grinding Corporation v. Paperyard, No. 873: Whether standing to assert a Lanham Act false adver- 1111351 (Ala. June 7, 2013) tising claims is determined by: (1) the multi-factor test as Without opinion, the court affirmed the Barbour County adopted by the Third, Fifth, Eighth and Eleventh circuits; (2) Circuit Court’s order certifying a class asserting claims the categorical test, permitting suits only by an actual com- under the Telephone Consumer Protection Act (“TCPA”), 47 petitor, employed by the Seventh, Ninth and Tenth circuits; U.S.C. § 227. or (3) a version of the more expansive “reasonable interest” test, either as applied by the Sixth Circuit in this case or as Venue applied by the Second Circuit in prior cases Ex parte Guarantee Ins. Co., No. 1120337 (Ala. June Sandifer v. U.S. Steel Corp., No. 12-417: What consti- 14, 2013) tutes “changing clothes” within the meaning of Section A complex fact pattern triggered a plurality decision 203(o) of the Fair Labor Standards Act? reflecting the continuing disagreement among court mem- Kaley v. U.S., No. 12-464: Whether, when a post-indict- bers concerning the “events or omissions” test for individual ment, ex parte restraining order freezes assets needed by a venue.

www.alabar.org | THE ALABAMA LAWYER 339 THE APPELLATE CORNER Continued from page 339

Statute of Limitations; Discovery Rule Federal Lands Utilities Board of the City of Opp v. Shuler Brothers, Ex parte U.S. Innovations Group, Inc., No. 1120296 Inc., No. 1111558 (Ala. June 21, 2013) (Ala. June 28, 2013) Two-year statute of limitations applicable to negligence Accident occurring on Redstone Arsenal was not subject claims (Ala. Code 6-2-38(l)) is not subject to a discovery to exclusive federal court jurisdiction rule, which applies only to fraud actions and to cases involving the fraudulent concealment of the existence of a cause of action From the Alabama Court

Work Product Of Civil Appeals Ex parte USA Water Ski, Inc., No. 1120744 (Ala. June Adverse Possession 21, 2013) Edgil v. Spann, No. 2111232 (Ala. Civ. App. May 24, Post-accident report specifically requested by defendant to 2013) be made by the chair of a driver’s committee regarding a ski Adverse-possession period for a claimant ceases to run accident is protected work product, where defendant’s presi- when an action is filed challenging the ownership interest of dent testified that he anticipated that litigation would be the possessor. brought regarding the accident and asked for the report in aid of defending the case From the United States Workers’ Compensation; Retaliatory Discharge Supreme Court Ex parte Isbell, No. 1091163 (Ala. June 28, 2013) Agencies; Statutory Interpretation and On certiorari review in workers’ comp retaliation case, the Chevron Deference supreme court held that employee’s evidence of pretext cre- City of Arlington v. FCC, No. 11-1545 (U.S. May 20, ated a fact issue for trial, given length of time from alleged 2013) anti-gun policy violation to discharge, employee’s intervening Courts must apply the Chevron framework to an agency’s comp claim, the lack of employee knowledge of an anti-gun interpretation of a statutory ambiguity that concerns the policy and the repeated instances of other employees having scope of the agency’s statutory authority or jurisdiction. guns in the workplace Arbitration; Class Actions Road Contractor Liability Oxford Health Plans LLC v. Sutter, No. No. 12-135 Weaver v. Balch, No. 1100637 (Ala. June 28, 2013) (U.S. June 10, 2013) The court adopted the “accepted work doctrine,” under Arbitrator’s decision construing arbitration clause silent on which “an independent contractor is not liable for injuries class treatment as allowing class arbitration survived occurring to a third person after the contractor has complet- vacatur review under section 10, because the parties had ed the work and turned it over to the owner, and it has been specifically placed the issue before the arbitrator and accepted by him, even though the injury results from the because the arbitration clause gave the arbitrator power to contractor’s negligent performance of the contract or his decide arbitrability issues failure to perform it properly, at least if the defect in the work is not hidden, but is readily observable on reasonable Arbitration; Class Actions inspection.” American Express Co. v. Italian Colors Restaurant, Inc., Insurance No. 12-133 (U.S. June 20, 2013) Under the FAA, courts may not invalidate contractual Certain Underwriters at Lloyd’s of London v. SONAT, waivers of class actions contained within arbitration agree- No. 1110698 (Ala. June 28, 2013) ments on the ground that the plaintiffs’ cost of individually Under Alabama Plating Co. v. USF&G, 690 So. 2d 331 arbitrating a federal statutory claim exceeds the potential (Ala. 1996), Alabama cases have allowed coverage under recovery, thus resulting in an inability for plaintiffs to “effec- CGL policies for soil and groundwater contamination to an tively vindicate” their federal statutory rights. insured’s own property.

340 SEPTEMBER 2013 | www.alabar.org Pharmaceuticals; Preemption define marriage as a union between a man and a woman, was unconstitutional, Proposition 8’s official proponents did Mutual Pharmaceutical Co., Inc. v. Bartlett, No. 12- not have standing to appeal the district court’s order 142 (U.S. June 24, 2013) because the state officials charged with enforcing State law design-defect claims that turn on the adequacy Proposition 8 refused to defend its validity on appeal of a drug’s warnings are pre-empted by federal law.

Affirmative Action DOMA U.S. v. Windsor, No. 12-307 (U.S. June 26, 2013) Fisher v. University of Texas at Austin, No. 11-345 In a tax refund suit, in which plaintiff challenged the deter- (U.S. June 24, 2013) mination that the Defense of Marriage Act (DOMA) barred Under Grutter v. Bollinger, 539 U.S. 306 (2003) courts her from claiming the federal estate tax exemption for surviv- must apply “strict scrutiny” to race-involved college admissions ing spouses, which defines marriage and spouse as exclud- criteria. Though the university can receive deference in label- ing same-sex partners, the Second Circuit’s ruling that ing diversity as a compelling interest, the university receives section 3 of DOMA was unconstitutional and order that the no deference in being required to show that its methods are U.S. Treasury refund plaintiff’s tax with interest is affirmed, narrowly tailored to its goal. on the following bases: 1) the Court has jurisdiction to con- Labor and Employment; Vicarious Liability sider the merits of the case, even though the Obama administration refused to defend the validity of DOMA, because the Vance v. Ball State University, No. 11-556 (U.S. June administration continued to enforce the statute; and 2) 24, 2013) DOMA is unconstitutional as a deprivation of the equal liberty An employee is a “supervisor” for purposes of vicarious liabili- of persons that is protected by the Fifth Amendment ty under Title VII, thus exposing the employer to liability under Faragher, only if he or she is empowered by the employer to take tangible employment actions against the victim. From the Eleventh Labor and Employment Circuit Court of Appeals University of Texas Southwestern Medical Center v. Black Lung Nassar, No. 12-484 (U.S. June 24, 2013) U.S. Steel Mining Corp. v. Starks, No. 11-14468 (11th Title VII retaliation claims must be proved according to tra- Cir. June 27, 2013) ditional principles of but-for causation, not the lessened Until 2010, a black lung decedent’s survivor claiming bene- “motivating factor” causation test. fits was required to show that the miner died due to pneu- moconiosis. Since the Patient Protection and Affordable Voting Rights Act Care Act amended 30 U.S.C. § 932(l), a provision of the Shelby County v. Holder, No. 12-96 (U.S. June 25, black lung benefits program, circuits have debated whether 2013) survivors are still required to establish what caused the Section 4 of the Voting Rights Act, which provides the miner’s death. The Eleventh Circuit affirmed the board’s “coverage formula,” defining the “covered jurisdictions” as determination of eligibility in this case, holding that cause states or political subdivisions that maintained tests or of death was not required to be shown after the PPACA’s devices as prerequisites to voting, and had low voter regis- passage. tration or turnout, in the 1960s and early 1970s, is unconstitutional, and its formula can no longer be used as a basis Pharmaceuticals; Preemption (Florida for subjecting jurisdictions to the pre-clearance requirement Law) of Section 5 of the Voting Rights Act. Guarino v. Wyeth LLC, No. 12-13263 (11th Cir. June 25, 2013) Standing Florida law recognizes no cause of action against the Hollingsworth v. Perry, No. 12-144 (U.S. June 26, brand manufacturer of a drug when a plaintiff admits to hav- 2013) ing only taken the generic form of that drug. (The same In challenge to the district court’s ruling that California’s issue under Alabama law is currently pending in the Alabama Proposition 8, which amended the state constitution to Supreme Court.)

www.alabar.org | THE ALABAMA LAWYER 341 THE APPELLATE CORNER Continued from page 341

CAFA; Mass Actions Self-Incrimination Scimone v. Carnival Corp., No. 13-12291 (11th Cir. Salinas v. Texas, 133 S. Ct. 2174 (2013) July 1, 2013) There was no error in admitting evidence that the defen- CAFA does not allow removal of multiple and separate law- dant, following his voluntary, non-Mirandized statements to a suits to federal court as mass actions if the lawsuits in the police officer, balked at answering a question regarding aggregate contain 100 or more plaintiffs whose claims whether shells found at the crime scene would match his revolve around common questions of law or fact, where nei- shotgun. He failed to expressly invoke his Fifth Amendment ther the plaintiffs nor the state court have proposed that privilege against self-incrimination, and was required to 100 or more persons’ claims be tried jointly. assert that privilege in order to benefit from it.

Arbitration; Class Actions Complete Defense Southern Communications Services, Inc. v. Thomas, No. Nevada v. Jackson, 133 S. Ct. 1990 (2013) 11-15587 (11th Cir. July 12, 2013) The state court’s exclusion of extrinsic evidence that a sex- Under Oxford Health Plans LLC v. Sutter (U.S. June 28, ual assault victim had previously made unsubstantiated alle- 2013), arbitrator acted within his powers in construing arbi- gations against defendant did not violate the defendant’s tration agreement to allow for class actions, and, thus, constitutional right to present a complete defense there was no basis for vacatur DNA Swab Antitrust; Relevant Market Maryland v. King, 133 S. Ct. 1958 (2013) Gulf States Reorganization Group, Inc. v. Nucor Corp., Like fingerprinting or photographing, swabbing of arrestee No. 11-14983 (11th Cir. July 19, 2013) to obtain a DNA sample is a “legitimate police booking proce- Relevant market determination requires assessment of dure” reasonable under the Fourth Amendment. “cross elasticity of supply,” which measures whether manu- facturers of a related product could switch production to the Habeas; “Actual Innocence” product in issue without much difficulty or cost McQuiggin v. Perkins, 133 S. Ct. 1924 (2013) A legitimate claim of “actual innocence” is a gateway FLSA through which the federal court may consider a habeas peti- Scantland v. Jeffry Knight, Inc., No. 12-12614 (11th tion that would be otherwise barred by the AEDPA one-year Cir. July 16, 2013) limitation period. In FLSA case, the Court reversed the district court’s grant of summary judgment to employer, reasoning that four of the Ineffective Assistance six factors used in assessing “independent contractor” vs. Trevino v. Thaler, 133 S. Ct. 1911 (2013) “employee” weighed in plaintiffs’ favor, thus creating fact Martinez v. Ryan, 566 U.S. 1 (2012), under which proce- issue on overtime entitlement dural default will not bar the habeas court from reviewing a “substantial claim of ineffective assistance at trial” where there was either no counsel in post-conviction proceedings or post-conviction counsel was ineffective, applies to states RECENT CRIMINAL DECISIONS whose procedure allows the ineffective assistance of trial counsel claim to be raised either on direct appeal or in post- From the United States conviction proceedings. Supreme Court Sentence Enhancement From the Alabama Alleyne v. United States, 133 S. Ct. 2151 (2013) Appellate Courts Under Apprendi, the element of “brandishing” a firearm must be determined by the jury, because this element Rule 32 Pleading increased the mandatory minimum sentence for the federal Ex parte Beckworth, No. 1091780, 2013 WL firearm offense. 3336983 (Ala. Jul. 3, 2013)

342 SEPTEMBER 2013 | www.alabar.org Rule 32 petitioner has no burden of initially pleading facts Correction in Verdict Form to negate the preclusion provisions of Rule 32.2; rather, he G.V.C. v. State, CR-11-0476 (Ala. Crim. App. Jun. 7, holds the burden of disproving preclusion if those provisions 2013) are pleaded by the state. Trial court’s post-verdict correction of a clerical error in the jury’s verdict form–from “sexual assault” to “sexual Menacing; “Physical Action” abuse”–was not erroneous, as the jury had been instructed Ex parte Pate, No. 1111448, 2013 WL 3336985 (Ala. on the offense of sexual abuse Jul. 3, 2013) Property owner’s act of “getting [a] gun” during an alterca- Search; Standing tion with lessee did not satisfy the element of “physical T.L.S. v. State, CR-12-0075 (Ala. Crim. App. Jun. 7, action” required for proof of menacing 2013) Juvenile had no standing to challenge the inventory search Competency of the vehicle in which he was a passenger, because he had Ex parte Cate, No. 1111240, 2013 WL 3154013 (Ala. no expectation of privacy in the vehicle | AL Jun. 21, 2013) Because she had not entered a plea of not guilty by reason of mental disease or defect, the trial court was not authorized to order a mental evaluation to determine competency at the time of the offense.

www.alabar.org | THE ALABAMA LAWYER 343 DISCIPLINARY NOTICES

Notices

Disbarments Notices

Suspensions • Notice is hereby given to Sarah Anna Rutland Cook, who practiced in Montgomery, and whose whereabouts are unknown, that, pursuant to the Public Reprimand Disciplinary Commission’s order to show cause dated April 26, 2013, she has 60 days from the date of this publication to come into compliance with the Mandatory Continuing Legal Education requirements for 2012. Noncompliance with the MCLE requirements shall result in a suspension of her license. [CLE No. 13-659]

• Notice is hereby given to Markus Alexander Jander, who practiced in Gainesville, Georgia and whose whereabouts are unknown, that, pursuant to the Disciplinary Commission’s order to show cause dated April 26, 2013, he has 60 days from the date of this publication to come into compliance with the Mandatory Continuing Legal Education requirements for 2012. Noncompliance with the MCLE requirements shall result in a suspension of his license. [CLE No. 13-661]

• William Michael Keever, whose whereabouts are unknown, must answer the Alabama State Bar’s formal disciplinary charges within 28 days of September 15, 2013 or, thereafter, the allegations contained therein shall be deemed admitted and appropriate discipline shall be imposed against him in ASB nos. 2008-143(A) and 2009-1556(A) by the Disciplinary Board of the Alabama State Bar.

• Notice is hereby given to Adam Grant Pinkard, who practiced in Tupelo, Mississippi and whose whereabouts are unknown, that, pursuant to the Disciplinary Commission’s order to show cause dated April 26, 2013, he has 60 days from the date of this publication to come into compliance with the Mandatory Continuing Legal Education requirements for 2012. Noncompliance with the MCLE requirements shall result in a suspension of his license. [CLE No. 13-666]

• Notice is hereby given to James Clinton Pittman, who practiced in Birmingham and whose whereabouts are unknown, that, pursuant to the Disciplinary Commission’s order to show cause dated April 26, 2013, he has 60 days from the date of this publication to come into compliance with the Mandatory Continuing Legal Education requirements for 2012. Noncompliance with the MCLE requirements shall result in a suspension of his license. [CLE No. 13-668]

• Notice is hereby given to Stephen Scott Weldon, who practiced in Tallassee and whose whereabouts are unknown, that, pursuant to the Disciplinary Commission’s order to show cause dated April 26, 2013, he has 60 days from the date of this publication to come into compliance with the Mandatory Continuing Legal Education requirements for 2012. Noncompliance with the MCLE requirements shall result in a suspension of his license. [CLE No. 13-672]

344 SEPTEMBER 2013 | www.alabar.org • Montgomery attorney Darryl Avon Parker was disbarred Disbarments from the practice of law in Alabama, effective May 20, • Birmingham attorney Janine Marie Burrell was disbarred 2013, by order of the Supreme Court of Alabama. The from the practice of law in Alabama by order of the supreme court entered its order based upon the decision Supreme Court of Alabama, with an effective date of of the Disciplinary Board of the Alabama State Bar accept- March 13, 2013. The supreme court entered its order ing Parker’s consent to disbarment. Parker consented to based upon the March 13, 2013 report and order of disbarment based on pending investigations into his ethical Panel II of the Disciplinary Board of the Alabama State Bar. conduct as a lawyer that concerned allegations that he Burrell was found guilty of filing false MCLE reports with knowingly made false statements to the Bankruptcy Court, the bar. [ASB No. 2012-341] misappropriated client filing fees, failed to attend hearings and engaged in practice in an area in which he lacked • Phenix City attorney Dana Posey Gentry was disbarred competence. [Rule 23, Pet. No. 13-813 et al] from the practice of law in Alabama by order of the Supreme Court of Alabama, effective May 30, 2013. The • On February 22, 2013, the Supreme Court of Alabama supreme court entered its order based upon the April 18, affirmed the disbarment of Montgomery attorney 2013 order entered by Panel I of the Disciplinary Board Gatewood Andrew Walden, initially entered June 14, imposing reciprocal discipline by disbarment. On October 2012. Walden appealed the decision of the Disciplinary 15, 2012, the Supreme Court of Georgia disbarred Gentry Board’s finding that he violated rules 3.1(a), 8.4(a), 8.4(d) due to his representation of clients in three divorce cases, and 8.4(g), Ala. R. Prof. C. Walden took actions merely to wherein he failed to file appropriate documents, failed to harass or maliciously injure another party. Walden also communicate, failed to appear in court and withdrew from assisted or induced another individual to violate the Rules the case without notifying his client. Finally, Gentry filed a of Professional Conduct and engaged in conduct that petition on behalf of his client containing numerous false adversely reflects on his fitness to practice law. On statements. [Rule 23, Pet. No. 2012-1932] February 22, 2013, the Supreme Court of Alabama issued a certificate of judgment affirming the June 14, • Birmingham attorney Chuck Hunter was disbarred from the 2012 order of Panel III of the Disciplinary Board. [ASB No. practice of law in Alabama by order of the Supreme Court of 2009-1040(A)] Alabama, effective May 30, 2013. The supreme court entered its order based upon the May 8, 2013 order of con- • Birmingham attorney Keely Luann Wright was disbarred sent to disbarment entered by Panel I of the Disciplinary from the practice of law in Alabama by order of the Board of the Alabama State Bar. Hunter consented to disbar- Supreme Court of Alabama, with an effective date retroac- ment after being convicted in the United States District Court tive to October 17, 2011, the date of Wright’s previously for the Northern District of Alabama, Southern Division, of ordered interim suspension. The supreme court entered coercion or enticement of a minor utilizing interstate com- its order based upon the May 8, 2013 order on consent merce, a violation of 18 U.S.C. § 2422(b), and two counts to disbarment of Panel I of the Disciplinary Board of the of utilizing interstate commerce to possess child pornogra- Alabama State Bar. Wright’s consent to disbarment was phy, violations of 18 U.S.C. § 2252A(a)(2). On March 27, based upon her recent conviction for theft of property, 1st 2013, Hunter was found guilty on all three counts. [Rule 23, Degree. [Rule 23(a), Pet. No. 2013-774; Rule 20(a), Pet. Pet. No. 2013-586; ASB No. 2012-1223] No. 2011-1671; ASB No. 2011-1366]

www.alabar.org | THE ALABAMA LAWYER 345 DISCIPLINARY NOTICES Continued from page 345

by failing to adequately explain the bankruptcy procedures Suspensions to his clients; in ASB No. 2009-2050(A), Lively violated • Montgomery attorney Randy Barnett Blake was suspend- rules 1.3 and 1.4(a), Ala. R. Prof. C., by failing to diligently ed from the practice of law in Alabama for 91 days by pursue his client’s uncontested divorce case and by failing order of the Supreme Court of Alabama, effective June to adequately communicate with his client; in ASB No. 19, 2013. The supreme court entered its order based 2009-2158(A), Lively violated rules 1.3 and 1.4(b), Ala. upon the Disciplinary Commission’s acceptance of Blake’s R. Prof. C., by failing to diligently protect his client’s inter- conditional guilty plea, wherein Blake pled guilty to violating ests in her bankruptcy matter and by failing to adequately rules 1.4(a), 1.5(a), 1.15(a) and 8.4(g), Ala. R. Prof. C. In explain the bankruptcy procedures to his client; in ASB No. January 2010, Blake was retained to represent a client in 2010-1839, Lively violated rules 1.3 and 1.4(a), Ala. R. a post-divorce matter involving the sale of the marital Prof. C., by failing to adequately pursue his client’s bank- home and the distribution of the sale proceeds. The sale ruptcy case and by failing to adequately communicate with of the marital home closed in January 2011, and the sale his client; in ASB No. 2010-1907, Lively violated rules 1.3 proceeds were deposited into Blake’s trust account on and 1.4(b), Ala. R. Prof. C., by failing to follow the court’s February 7, 2011. From January 2011 through April instructions to file a satisfaction of judgment and by failing 2012, Blake withdrew approximately $66,700 from the to adequately communicate with his client; in ASB No. sale proceeds as his fee in the matter. Such a fee was 2012-1447, Lively violated Rule 1.15(d), Ala. R. Prof. C., clearly excessive. In addition to his 91-day suspension, because his trust account was overdrawn; and, in UPL Blake must also make full restitution to the client. [ASB No. 2013-403, Lively violated rules 5.5(a) and 5.5(d), Ala. No. 2013-1315] R. Prof. C., by filing a complaint, signing pleadings and identifying himself as counsel while his law license was sus- • Bessemer attorney Elizabeth Davis Harris was suspend- pended. [ASB nos. 2008-208(A), 2009-2050(A), 2009- ed from the practice of law in Alabama for six months, by 2158(A), 2010-1839, 2010-1907, and 2012-1447; order of the Supreme Court of Alabama, effective October UPL No. 2013-403] 15, 2012. The supreme court entered its order based upon the Disciplinary Commission’s acceptance of Harris’s • Montgomery attorney Mark Andrew Overall was sus- conditional guilty plea, wherein Harris pled guilty to violat- pended from the practice of law in Alabama for 91 days by ing rules 5.5(a)(1), 8.4(a), 8.4(d) and 8.4(g), Ala. R. Prof. order of the Disciplinary Commission of the Alabama State C. Harris was previously interimly suspended from the Bar. The suspension was ordered held in abeyance and practice of law in Alabama on October 15, 2012 for fail- Overall was placed on probation for two years. In addition, ure to certify her IOLTA account, and had not been rein- the Disciplinary Commission ordered that Overall complete stated. Prior to her suspension, Harris failed to purchase a course of study to be determined by and offered through an occupational license for the year 2013. Following her the Practice Management Assistance Program within suspension, Harris continued to engage in the practice of three months of the commission’s order. The order of the law, including appearing on behalf of clients in the family Disciplinary Commission was based upon Overall’s condi- court of Jefferson County, Bessemer Division. [ASB No. tional guilty plea to multiple violations of rules 1.3, 1.4(a) 2013-430] and 8.4(g), Ala. R. Prof. C. In ASB No. 2012-2030, the Office of General Counsel • On May 16, 2013, the Supreme Court of Alabama affirmed was advised of misconduct by Overall by a presiding circuit the suspension of Prattville attorney Richard Dale Lively court judge in Houston County. Overall was found to be in for 90 days, retroactive to November 17, 2012, the date contempt of court, despite prior warnings given to him Lively completed his previously ordered six-month suspen- regarding his conduct. In addition, Overall failed to appear sion. On April 15, 2013, the Disciplinary Commission of the for an arraignment and failed to appear for court before Alabama State Bar accepted Lively’s conditional guilty plea other judges in the circuit. In ASB No. 2013-377, Overall to the following: in ASB No. 2008-208(A), Lively violated failed to inform his client of a court hearing and failed to rules 1.3, 1.4(a) 1.4(b), 3.2, 8.4(a), 8.4(c), 8.4(d), and file a written response to a motion for summary judgment. 8.4(g), Ala. R. Prof. C., by failing or refusing to diligently In ASB No. 2013-386, Overall failed to appear on behalf protect his clients’ interests in their bankruptcy matter and

346 SEPTEMBER 2013 | www.alabar.org of his client at a status conference in the Circuit Court of 18, 2013, for noncompliance with the 2010 Mandatory Montgomery County. In 2013-415, the Office of General Continuing Legal Education requirements of the Alabama Counsel was advised by a circuit court judge of misconduct State Bar. [CLE No. 11-730] by Overall for failure to appear for court in a timely manner and lack of knowledge concerning pending charges in the matter before the court. In ASB No. 2013-788, Overall pled guilty to misconduct for improperly subpoenaing wit- Public Reprimand nesses. Rather than having subpoenas issued through the • On May 3, 2013, Alabama attorney William Harold clerk’s office, Overall altered the forms, issued subpoenas Thomas, Jr., who is also licensed to practice in directly from his office and signed the forms in place of the Tennessee, received reciprocal discipline in the form of a clerk’s signature. Overall also filed complaints requesting a public reprimand with general publication, pursuant to Rule demand for jury trial in the body of the complaint, but indi- 25(d), Ala. R. Disc. P. The Board of Professional cated on the civil cover sheet that no jury demand is being Responsibility of the Supreme Court of Tennessee imposed made. By doing this, Overall tried to avoid extra fees asso- discipline upon Thomas in the form of a public censure, ciated with filing a civil complaint in which a jury trial is pursuant to Tenn. Sup. Ct. R. 9, § 4.4, for failure to abide demanded. [ASB nos. 2012-2030, 2013-377, 2013- by an order of the court requiring Thomas to comply with 386, 2013-415, and 2013-788] discovery requests in a civil proceeding in which Thomas was a party, a violation of rules 8.4(d) and 8.4(g), Tenn. R. • Hoover attorney Carey Wayne Spencer, Jr. was sus- Prof. C. [Rule 25(a), Pet. No. 2012-1861] | AL pended from the practice of law in Alabama, effective April

Design and Marketing Services

Logos Trade Show Exhibits Websites Publication Design Brochures Media Kits Product Catalogs Billboards Print Ads P.O.P. Displays Product Packaging Professional Portfolios Sales Support Material

P.O. Box 231596 | Montgomery, AL 36123 | 334.273.9926 www.taplink.com

www.alabar.org | THE ALABAMA LAWYER 347 Opinions of the General Counsel

J. Anthony McLain The Nuts and Bolts of The Disciplinary Process

Who enjoys responding to bar complaints? No one does. Yet, in 2012, 1,601 bar complaints were filed against Alabama lawyers. Naturally, many lawyers have an understandable aversion to bar complaints and the disciplinary process. However, the fact remains that at some point in the career of a lawyer, he or she will be faced with the task of responding to a bar complaint. This is especially true for lawyers who practice criminal defense or domestic relations law where the client is seldom happy at the conclusion of the case, often for reasons outside the lawyer’s control. The purpose of this article is to give lawyers a basic understanding of the disciplinary process and offer some advice as to how to respond to a bar complaint. First among those questions is what rules apply to lawyer discipline? As a preliminary matter, Alabama’s disciplinary process is guided by the Alabama Rules of Disciplinary Procedure. Pursuant to Rule 1, Ala. R. Disc. P., all lawyers admitted to practice in Alabama are subject to the exclusive disciplinary jurisdiction of the Disciplinary Commission and the Disciplinary Board, with review by the Supreme Court of Alabama. Further, pursuant to Rule 2, Ala. R. Disc. P., the grounds for imposing discipline may include any violation of the Alabama Rules of Professional Conduct, conviction of a serious crime, discipline imposed in another jurisdiction or any other misconduct that adversely reflects on that lawyer’s fitness to practice law, regardless of whether such violation occurred during the course of the lawyer- client relationship. While the Alabama Rules of Civil Procedure generally govern the proceedings of the Disciplinary Board, the nature of disciplinary proceedings is neither civil nor criminal but rather sui generis. That is to say the disciplinary process is governed by its own, unique set of rules. (The Alabama Rules of Disciplinary Procedure can be found toward the back of your copy of the 2013 Alabama Rules of Court.) Attorneys also often ask who has standing to file a bar complaint. While the disciplinary process is generally initiated by a client’s filing of a bar complaint, it may

348 SEPTEMBER 2013 | www.alabar.org also be initiated by the Office of General Counsel, a local Lawyers should understand that responding to a bar com- grievance committee or other sources, including attorneys, plaint, while time consuming, is part of the practice of law. judges, adverse parties or concerned citizens. When a com- Attorneys have also attempted to bill the complaining party plaint is received or opened by the Office of General Counsel, or our office for the time taken to submit a written the complaint is assigned to one of three assistant general response. To state the obvious, a lawyer cannot charge the counsels. As a general practice, an assistant general coun- client or the bar for the time it took the lawyer to respond to sel does not review the bar complaint until after the com- a bar complaint. plaint has been sent to the respondent attorney and the So what happens after the lawyer responds? Once the respondent attorney has submitted a written, signed lawyer’s response is received by the Office of General response to the complaint. This is true regardless of how Counsel, the complaint and response are reviewed by at least frivolous the complaint may seem on its face. two of the three assistant general counsels, who must reach So, what is the right way to respond to the initial bar com- agreement how to proceed. There are three options at this plaint? The attorney should respond concisely and directly to stage in the proceedings. The complaint can be screened out the allegations of the complainant, in writing, and attach any as non-meritorious, a formal investigative file can be opened relevant documents that may disprove the allegations of the or further information can be requested from either the com- complainant. If the allegations involve complex areas of the plainant or the respondent attorney. In 2012, of the 1,601 law, it may be useful to provide some basic information about complaints filed, 1,267 were screened out at this stage. the law applicable to the issues. If a formal investigative file is opened, the file is assigned While the “right” way to respond to the initial bar complaint to either an assistant general counsel or a local grievance is very simple, there are a myriad of “wrong” ways to committee for investigation. Simply opening a formal inves- respond. First among these “wrong” responses is the failure tigative file does not indicate that a decision or finding has to respond at all. Every year, multiple lawyers are summarily already been made that the respondent attorney violated a suspended pursuant to Rule 8(e) and Rule 20, Ala. R. Disc. rule of professional conduct. Rather, it generally means that P., for failing to submit a written response to a bar com- conduct has been alleged that would be a violation of the plaint. Even if the underlying bar complaint may be without Rules of Professional Conduct and there is a dispute in facts merit, a lawyer’s failure to respond is grounds for summary between the complainant’s version of events and the respon- suspension from the practice of law. Further, a response dent attorney’s version requiring further investigation. that merely denies the allegations of the complaint without However, the opening of a formal investigative file is signifi- any substantive response to the allegations is insufficient. cant in that it triggers a lawyer’s duty to notify the managing While such a response may be sufficient to avoid summary partner, senior partner, executive committee or manage- suspension, it leaves our office with no choice but to open a ment committee of his or her firm of the existence and formal investigative file in the matter. nature of the allegations. Furthermore, once a formal inves- Another “wrong” way to respond is via the submission of tigative file is opened, the complaint can only be dismissed by false statements or forged records. Rule 8.1, Ala. R. Prof. the Disciplinary Commission. C., expressly prohibits false statements to the bar in connec- A formal investigation of a complaint may include the sub- tion with a disciplinary matter. Lawyers who lie to the bar in poenaing of documents, the taking of depositions, the inter- their responses and other stages of the disciplinary process viewing of the parties and witnesses, or any other action the often turn minor violations, which would otherwise result in Assistant General Counsel or local grievance committee little or no discipline, into matters resulting in suspension or deems necessary. Pursuant to Rule 8.1(b), Ala. R. Prof. C., disbarment. a respondent lawyer has an ethical obligation to cooperate Finally, it is unwise to respond with anger toward the bar with the investigation. Failure to do so can again result in regarding having to respond to a bar complaint. It is not in that lawyer’s summary suspension from the practice of law. the best interest of the responding lawyer to phone one of Once the investigation is completed, the assistant general the assistant general counsels and yell at them for being counsel or local grievance committee will prepare an inves- tasked with providing a written response. This type of tigative report for review by the Disciplinary Commission of response will not win the lawyer any points with the bar. the Alabama State Bar.

www.alabar.org | THE ALABAMA LAWYER 349 Opinions of the General Counsel Continued from page 349

What is the Disciplinary Commission? The Disciplinary What is the Disciplinary Board? The Disciplinary Board is Commission of the Alabama State Bar is comprised of four separate and distinct from the Disciplinary Commission and attorneys, three members and a chair, appointed by the is comprised of a hearing officer, three attorneys from the Board of Bar Commissioners. For lack of a better analogy, Board of Bar Commissioners and one lay member. In effect, the Disciplinary Commission acts as a grand jury by review- the five-member panel serves as the jury and will determine ing the investigative reports and determining whether the whether the respondent attorney is guilty of professional mis- respondent lawyer engaged in misconduct. If the Disciplinary conduct as alleged in the formal charges. The burden is on Commission determines that no misconduct occurred then it the bar to demonstrate by clear and convincing evidence has the authority to dismiss the matter. It should also be that the respondent attorney is guilty of having violated the noted that the Disciplinary Commission also reviews and pre- Alabama Rules of Professional Conduct. The Rules of sides over all interim and summary suspensions. Evidence and Rules of Civil Procedure apply during this stage If the Disciplinary Commission determines the respondent of the proceedings, except as otherwise provided by the attorney violated the Alabama Rules of Professional Rules of Disciplinary Procedure. At the hearing, the respon- Conduct, the commission may issue a private reprimand, dent attorney is entitled to be represented by counsel and to public reprimand without general publication or public repri- present evidence on his own behalf. Also of note is the fact mand with general publication. If the Disciplinary Commission that each member of the panel may question witnesses. believes that the appropriate discipline would be suspension If the respondent attorney is found not guilty by the or disbarment, then the recommendation would be for the Disciplinary Board, the proceedings are over unless the bar Office of General Counsel to file formal charges. Once the chooses to appeal to the Supreme Court of Alabama. If the Disciplinary Commission has determined the proper disposi- respondent attorney is found guilty of a rules violation, the tion of the complaint, the respondent attorney is notified of hearing then proceeds to the penalty phase, during which the commission’s decision by letter. If the Disciplinary both the bar and the respondent attorney are allowed to Commission has determined that the respondent attorney present evidence and arguments as to the appropriate disci- should receive a private or public reprimand with or without pline. The Disciplinary Board then determines the appropri- general publication, the respondent attorney may accept the ate discipline to be imposed against the respondent attorney. reprimand, request reconsideration by the Disciplinary If the respondent attorney is found guilty by the Disciplinary Commission or demand, in writing, that formal charges be Board, the respondent attorney has the right to appeal the filed by the Office of General Counsel. If the attorney fails to board’s finding or imposition of discipline to the Supreme respond to the notification letter, the discipline of the Court of Alabama within 14 days of the board’s written find- Disciplinary Commission will be imposed. ings. Likewise, the bar may also appeal any findings of the If the Disciplinary Commission recommends formal charges Disciplinary Board. or the respondent attorney demands formal charges, then Other notable aspects of the disciplinary process include the Office of General Counsel will file formal charges against the fact that: (1) any conditional guilty plea must be submit- the respondent attorney with the Disciplinary Board and pros- ted and approved by the Disciplinary Commission and, if ecute the matter. Once the formal charges are filed and the such involves a suspension or disbarment, the Supreme respondent attorney is served, the respondent attorney has Court of Alabama; (2) the refusal of a complainant to pro- 28 days to file an answer. If the respondent attorney fails to ceed or to cooperate with an investigation or prosecution file an answer within this time frame and/or fails to file for an does not abate the disciplinary proceedings; and (3) discipli- extension for time in which to answer, the charges can be nary proceedings are not deferred simply because there may deemed admitted as a matter of law pursuant to Rule be a pending civil or criminal proceeding related to the bar 12(e)(1), Ala. R. Disc. P. If the charges are deemed admitted complaint. Additional guidance on the disciplinary process, as a matter of law, then the matter is set for a hearing to including interim and summary suspensions, disability inac- determine discipline before the Disciplinary Board of the state tive status and reinstatements, may be found by reviewing bar. If the respondent attorney files an answer denying the the Alabama Rules of Disciplinary Procedure or contacting charges, then the matter is set for a hearing on the merits the Office of General Counsel. | AL before the Disciplinary Board.

350 SEPTEMBER 2013 | www.alabar.org BAR BRIEFS

Adam Bourne has been elected chair of the Alabama League of Municipalities’ Committee on Finance, Administration and Intergovernmental Relations. Bourne is a Chickasaw city councilman.

Lisa Darnley Cooper, in the Mobile office of Hand Arendall LLC, was recognized for her work with several area organizations with the William Kaufman award, named for the founder of the Community Foundation of South Alabama.

Richard E. Glaze, Jr., with Balch & Bingham LLP, has co- Cooper authored the recently released Practising Law Institute EPA Compliance and Enforcement Answer Book 2013.

Ed Hardin, in the Birmingham office of Burr & Forman LLP, has been elected vice president of the Southeastern Chapter of the American Board of Trial Advocates (SEABOTA). He will serve as president of the organization in 2015, which encompasses 11 state chapters. Hardin’s two-year term as vice president began in May. Hardin

John W. Hargrove, with Bradley Arant Boult Cummings LLP in Birmingham, has been elected a Fellow in the College of Labor and Employment Lawyers. He will be formally installed in November in New Orleans, at an induction dinner during the American Bar Association (ABA) Labor and Employment Law Section Conference.

The International Association of Defense Counsel (IADC) elected Tripp Haston, with Bradley Arant Boult Cummings LLP, president- elect for 2013-2014. The IADC has served a distinguished membership of corporate and insurance defense attorneys since 1920.

Neil C. Johnston, with the Mobile office of Hand Arendall LLC, was elected a Fellow of the American College of Real Estate Haston Lawyers (ACREL).

William V. Linne of Pensacola is one of three board-certified tax lawyers in northwest Florida who have achieved 30-year status, according to the Florida Bar Board Certification Program. Linne has been a member of the Alabama State Bar since 1972.

Bradley J. Sklar, of Sirote & Permutt, has been elected co-chair of the American Institute on Federal Taxation (AIFT). In addition to his co-chair position, Sklar also sits on the Board of Trustees for the AIFT and is a long-time supporter of the organization and its mission to advance the knowledge of federal taxation through pro- Sklar grams of study for tax professionals.

Larry D. Smith, with Southern Trial Counsel | PLC, is the recipient of the Florida Bar 2013 Henry Latimer Diversity Award.

G. Thomas Sullivan, with Cabaniss, Johnston, Gardner, Dumas & O’Neal LLP, has been appointed by the AHLA Board of Directors as chair of the American Health Lawyers Association Dispute Resolution Service Council.

Donald M. Wright, of Sirote & Permutt PC in Birmingham, was elected to the board of directors of the Mid-South Commercial Law Institute. | AL

www.alabar.org | THE ALABAMA LAWYER 351 LEGISLATIVE WRAP-UP

During the 2013 Regular Session, the Alabama Legislature passed four bills that were prepared and presented by the Alabama Law Institute: The Alabama Uniform Collaborative Law Act, the Alabama Unitrust Act, amendments to Title 10A regarding name reservations and amendments to Article 4A of the Uniform Commercial Code. These acts were the result of extensive work by committees of lawyers who volunteer their time to serve on Law Institute drafting committees. These committees spend a great deal of time working to ensure that these laws are well vetted, tailored to Alabama law and practice and will improve the state of the law for Alabama citizens.

Othni J. Lathram [email protected] Alabama Uniform Collaborative For more information about the Law Act institute, visit www.ali.state.al.us. Act 2013-355 The Uniform Collaborative Law Act represents a new addition to the alternative dispute resolution toolbox. It allows parties to engage in a very inclusive form of negotiation that goes beyond the realm of purely legal theory to include non-legal tools to help facilitate agreement. The application of the act is limited to family law matters, including family law matters in probate court, such as guardianships. Collaborative law is a voluntary, contractually-based alternative dispute resolution process for parties who seek to negotiate a resolution of their issues rather than having their issues decided by a court. Under the provisions of the act, the lawyers and clients agree that the lawyers will represent the clients solely for purposes of settlement, and that the clients will hire new counsel if the case does not settle. No one is required to participate, and parties are free to terminate the process at any time. The basic ground rules for collaborative law are set forth in a written agreement in which the parties agree not to seek a judicial resolution of a dispute during the collaborative law process. The act mandates full disclosure of the process to enable the parties to make informed consents. Furthermore, the act requires collaborative lawyers to make reasonable inquiries and take steps to protect parties from the trauma of domestic violence. The act envisions that collaborative process could include experts in areas beyond the law such as financial experts and even, in some cases, counselors. The act was drafted by a committee chaired by Senator Cam Ward, who also served on the national committee that drafted the act for the Uniform Law Commission. Sen. Ward and Rep. Marcel Black sponsored the act in the legislature. Members of the drafting committee were: Melanie Atha, Hon. William Bell, Shelley Bilbrey, Justice Mike Bolin, Martha Cook, Amy Creech, Annesley DeGaris, Christie Dowling, Hon. Jim Fuhrmeister, Dean Noah Funderburg, Steven Hobbs, Mariam Irwin, Rep. Mike Jones, Robbie Lusk, Glory McLaughlin, Randy Nichols, Frances Nolan, Brian Overstreet, Hon. John Paluzzi, Candi Peeples, Hon. Jimmy Sandlin, Hon. Brenda Stedham, and Harold Woodman. Penny Davis served as reporter.

352 SEPTEMBER 2013 | www.alabar.org process for foreign and domestic entities and allows that a Alabama Unitrust Act name reservation will be valid for up to one year. The reser- Act 2013-336 vation would also be renewable for subsequent one-year peri- ods. This is already the law for foreign entities. The bill also This act amends the Alabama Code to expressly provide provides a mechanism to transfer a name that is reserved for the use and implementation of unitrusts. A unitrust is between entities. one in which an allocation is made annually so that a certain The act further clarifies that the grandfathering of corpo- percentage of the corpus of a trust shall be considered as rate names, ones that do not include Inc., Co., Incorporated income. or other allowable designations, allowed with the adoption of Under federal law, a state may allow a trust to provide for the Alabama Business Corporation Act in 1981, continues an alternative for reasonable apportionment between the to exist for entities that were formed before that time. income and remainder beneficiaries of the total return of the A committee chaired by Jim Wilson drafted the act. Sen. trust. An example given under the federal regulation is “a Jerry Fielding and Rep. Bill Poole sponsored the act in the state statute providing that income is a unitrust amount of legislature. Members of the drafting committee were: no less than 3% and no more than 5% of the fair market Professor Jim Bryce; Rick Clifton; L.B. Feld; Clark Goodwin; value of the trust assets, whether determined annually or Colin House; Jay Guin, III; Jason Isbell; Curtis Liles; Bo averaged on a multiple year basis. . . .” This act is consistent Lineberry; Scott Ludwig; Johnny Lyle; Jim McLaughlin; with the federal regulations. Rebecca Morris; Virginia Patterson; Jack Stephenson; Emily Furthermore, this act updates the Alabama Principal and Thompson; Prof. Howard Walthall; and Clark Watson. Income Act to provide for the creation of express unitrusts and to also permit existing trusts to be converted into unitrusts. UCC Article 4A An additional provision of the act also makes clear that the Alabama Trust Code applies to the Alabama Principal and Amendment Income Act. A committee chaired by Leonard Wertheimer drafted the Act 2013-337 act. Sen. Tammy Irons and Rep. Christopher England spon- This act amends Section 7-4A-108 of the Uniform sored the act in the legislature. Members of the drafting Commercial Code to provide that Alabama law will still apply committee were: Scott Adams; LaVeeda Battle; Douglas to any funds transfers that are not preempted by federal law. Bell; Anna Funderburk Buckner; Sen. Linda Coleman; Sydney Article 4A governs “Funds Transfers” which are a special- Cook, III; Kay Donnellan; Richard S. Frankowski; Robert T. ized method of payment, also referred to as a wholesale wire Gardner; William Hairston, III; Lyman F. Holland, Jr.; Ted transfer, which is usually between two commercial parties. Jackson; Prof. Tom Jones; Cynthia G. Lamar-Hart; Robert L. The Dodd-Frank Wall Street Reform and Commercial Loftin, III; J. Reese Murray, III; Bruce A. Rawls; Robert J. Protection Act is an amendment to the Federal Electronic Riccio; Myra Roberts; Alan Rothfeder; Brian Williams; and Fund Transfer Act and it preempts state laws concerning Ralph Yeilding, who served as co-chair. Fred Daniels served electronic fund transfers and casts uncertainty on state laws as reporter. governing commercial fund transfers. Because of the relatively simple and straightforward nature of this amendment, a drafting committee was not Amendments to Title 10A formed to address it. Rather, the act was circulated to the Law Institute Council as a whole for comment prior to the Act 2013-338 council’s consideration of the act. Sen. Jerry Fielding and This act was the first product of the Law Institute’s stand- Rep. Demetrius Newton sponsored the act in the legislature. ing committee on business entities. This committee was cre- I express my sincere gratitude to all of the persons ated to update and address issues relating to the Business involved in the preparation of these acts. Without the gener- and Nonprofit Entities Code on a continual basis. ous spirit of the members of the Alabama State Bar who This act amends the Business Entities Code (Title 10A) as donate so freely of their time, the role of the institute would it relates to name reservations. The act consolidates the be far more limited. | AL

www.alabar.org | THE ALABAMA LAWYER 353 ABOUT MEMBERS, AMONG FIRMS

David A. Bright, Warren H. About Members Burke, Jr. and DeAnna G. Hay have Megan Elder announces the open- become partners in Klasing & ing of the Law Office of Megan R. Williamson PC and Jonathan G. Elder LLC at 2015 First Ave., N., Wells has joined as an associate. Birmingham 35203. Phone (205) Thomas G. Mancuso announces 202-5757. the formation of Thomas G. Mancuso L. Kenneth Elmer announces the PC at 401 Madison Ave., opening of The Elmer Law Firm LLC Montgomery. Phone (334) 263-2533. at 1927 7th St., Tuscaloosa 35401. Raley L. Wiggins has joined the firm as special counsel. John K. Euler announces the opening of Euler Law Firm LLC at 205 W. McCollum Halcomb has joined 20th St. N., Ste. 208, Birmingham the staff of the Chapter 13 Standing 35203. Phone (205) 994-1883. Trustee for the Northern District of Alabama, Western Division, as senior Please email announcements Les Pittman announces the opening staff attorney. to Margaret Murphy, of Pittman Law Firm at 7030 Fain [email protected]. Park Dr., Ste. 8, Montgomery 36117. Ashley Hugunine has joined Baker Phone (334) 819-4730. Donelson in the Birmingham office. Catherine O’Quinn has joined Wilson & Guthrie LLC as an associate. Seth D. Reeg has joined the Among Firms Shreveport office of the United States Joe E. Basenberg announces that Attorney for the Western District he has been appointed by Governor of Louisiana as an assistant United Robert Bentley to the District States Attorney in the criminal division. Judgeship for Mobile County to fill Kyle Shirley has joined McDowell, the vacancy created by the retirement Faulk & McDowell LLC as an associate. of Judge Charles McKnight. Allen R. Trippeer, Jr. has joined Michael E. Brodowski and S. David Porterfield, Harper, Mills, Motlow & Due to space constraints, McCurry announce the formation of Ireland PA. The Alabama Lawyer no Brodowski & McCurry LLC at 415 longer publishes address Church St., Ste. 200, Huntsville Joe K. Whitt, III has joined changes, additional addresses 35801. Phone (256) 534-4571. Thompson, Garrett & Hines LLP of for firms or positions for attor- Brewton as an associate. | AL neys that do not affect their employment, such as committee or board affiliations. We do not print information on attorneys who are not members of the Alabama State Bar. About Members This section announces the opening of new solo firms. Among Firms This section announces the opening of a new firm, a firm’s name change, the new employment of an attorney or the promotion of an attorney within that firm.

354 SEPTEMBER 2013 | www.alabar.org . .._:......

www.freedomreporting.com ' .I FREJ HBDbM .,,.-,t Toll Free't l-877-373-3660 FREEDOMREPG "RTI NG.COM Local: 205-397-2397 - ful:~f~~ Fax: 205-397-2398 < Periodical Postage Paid Montgomery, AL

With over 50 years of experience, GilsbarPRO is t he exclusive admin istrator for the CNA Lawyers Professional Liability Program in t he State of Alabama. CNA is the largest underwriter of lawyers malpractice insurance in t he United States and is A-rated by A.M. Best. This combination is your best alternative for peace of mind in today's challenging environment. Expect Nothing Less. Call The PROs Today. 800. 906. 9654 • gilsbarpro.com CNA ~GILSBAR PRO

Otie or more of the CNA insl.lf"MCecompanies provide the p.-oduru and/or seNkei described. Th& in(Ofmationi s intended to pre-senta gen.e